Article 1. Definitions
In these general terms and conditions of sale (General Terms and Conditions), the below terms and expressions have the following meaning:
1.1 Affiliates: with respect to the Company, any natural person or legal entity directly or indirectly controlled by, or under common control with, the Company;
1.2 Agreement: any agreement for the sale of Products and/or Services to the Customer resulting from a Purchase Order placed with and accepted by the Company;
1.3 Anti-Corruption and Anti-Money Laundering Laws: all applicable laws, regulations, orders, ordinances, resolutions, decrees, or restrictive measures and/or other requirements having the force of law, adopted by any state or government or international organization such as, but not limited to, the US, UK, EU (or its respective Member States) or the UN or any other government authority, relating to anti-bribery and anti-money laundering, and in particular the U.S. Foreign Corrupt Practices Act of 1977 (the ‘FCPA’), or the UK Bribery Act of 2010, as amended from time to time;
1.4 Company: Biobest Group NV, with its registered office at Ilse Velden 18, 2260 Westerlo – Oevel, Belgium, with registered with the RLE (Antwerp-Turnhout) 0893.948.337;
1.5 Confidential Information: any Agreement and all Product- and Service-related information, including, without limitation, pricing, advice and descriptions provided by the Company to the Customer regardless of the form in which such information is provided. This excludes information related to health, safety, storage, and handling;
1.6 Customer: the natural person or legal entity whose Purchase Order, as defined below, is accepted by the Company;
1.7 Force Majeure: any event or circumstance beyond the reasonable control of a Party as a result of which the performance of the Agreement by that Party becomes temporarily or permanently impossible, including, without limitation, natural disasters, explosions, floods, snow and frost, extreme weather conditions, fire, accident, epidemics or pandemics, war and threat of war, terrorism, sabotage, civil disturbances, labour disputes or actions, strikes, lock-outs, lack of necessary materials or supplies, power or water shortages, transport disruptions, breakdown or loss of production or expected production of production equipment, import or export regulations or embargoes, measures to prevent the spread of disease or cyber-attacks or other obstructive measures by domestic and foreign competent authorities;
1.8 Goods or Products: any products that the Company will supply or has supplied to the Customer;
1.9 Insolvency Event: any situation where a Party:
(a) becomes unable to pay its debts or admits in writing its inability to do so;
(b) enters into liquidation, whether voluntary or compulsory or a resolution is passed or a petition filed with the Court for the liquidation;
(c) has an administrator or similar officer appointed over all or any part of its assets;
(d) enters into any arrangement, compromise, or composition with its creditors;
(e) becomes subject to a court order in relation to insolvency, bankruptcy, or similar proceedings; or
(f) files a claim or Court application in respect of, or calls or convenes a meeting for the approval of, any compensation, compromise, moratorium, scheme or other similar arrangement with his creditors
(g) undergoes any analogous event or action under applicable law in any jurisdiction that has a substantially similar effect to the events listed above;
1.10 Intellectual Property: any and all (i) copyrights and other rights associated with works of authorship (whether copyrightable or not), (ii) trade secrets, technology, know-how, formula, data bases, customer lists, marketing data and alike (iii) patents, patent disclosures, industrial designs and all rights in inventions (whether patentable or not) (iv) Trademarks, trade names (whether registered or not), Internet domain names, including applications for the registration thereof together with all of the goodwill associated therewith, (v) all other intellectual and industrial property rights of any kind and nature throughout the world and however designated, whether arising by operation of law, contract, license, or otherwise, (vi) any neighbouring or moral rights or goodwill associated with the foregoing and (vii) all registrations, applications, renewals, thereof now or hereafter;
1.11 Party / Parties: the Company or/and the Customer;
1.12 Purchase Order: the Customer’s written or electronic order for Products and/or Services, including any order that the Customer places online through the Company website or transmits via email, phone or fax;
1.13 Public Official: any person with local, regional, national or international political mandate or a candidate for such mandate as well as any official or employee hired by or working for any local, regional, national or international government or a government owned company or public organisation;
1.14 Related Persons: any person or entity that the Customer directly or indirectly owns or controls, or for which it is acting on behalf of or at the direction of. This definition also extends to include any intermediaries or service providers working with or on behalf of the Customer in the performance of its duties. These include, but are not limited to, transport companies, banks, insurance companies, or other third-parties that provide services in support of or in connection with the Customer’s activities;
1.15 Sanctions: any trade, anti-boycott, economic and/or financial sanctions or export controls including without limitation any relevant law, regulation, order, ordinance, resolution, decree, restrictive measure or other requirement having the force of law, as well as import and export restrictions related to military and dual use products and technologies, chemical precursors (drugs and explosives), dangerous chemicals, pesticides and substances that deplete the ozone layer, adopted by the US, UK, EU (or its respective Member States), UN or any other government authority;
1.16 Services: any services that the Company will provide or has provided to the Customer, including, without limitation, consulting (whether or not in connection with the sale of Products), leasing of Products, and providing ‘Software as a Service’ (SaaS) in high-technology IPM solutions;
1.17 Trademarks: any trademarks, service marks and logos displayed on any document or website referenced to, or on any Product, whether registered or not.
Article 2. Applicability
2.1 All negotiations and transactions between the Company and the Customer shall be subject to the General Terms and Conditions. This relates to the sale and delivery of Products and Services and includes all offers, notifications, Purchase Order confirmations, Agreements, invoices and activities carried out by the Company. No additional or alternative terms and conditions or amendments to these General Terms and Conditions that the Customer proposes and that are contained in or referred to in a Purchase Order or that are submitted to the Company in any other form shall be deemed to apply, regardless of the time at which such additional or alternative terms and conditions or amendments of the Customer were transmitted to the Company and regardless of the time at which the Company transmitted the General Terms and Conditions to the Customer, unless explicitly accepted in writing by the Company.
2.2 The Customer shall be deemed to have accepted these General Terms and Conditions in full by his previous submission of a Purchase Order to the Company or by his acceptance of Products and/or Services of the Company
2.3 A duly executed agreement between the Parties shall supersede the General Terms and Conditions for those items for which such agreement explicitly defines different terms and conditions. For all other items, the General Terms and Conditions shall continue to apply.
Article 3. Offers
3.1 The Customer agrees that any pricing or any other information provided by the Company is for reference only and does not constitute an offer to sell Products and/or Services. Price quotations issued by the Company shall have a validity of thirty (30) calendar days. Any offer to enter into an Agreement must be initiated by the Customer through a Purchase Order. However, a Purchase Order shall not be considered an Agreement unless and until the earlier date upon which the Company:
a. explicitly confirms the Purchase Order in writing; or
b. commences the execution of the Purchase Order.
3.2 If at any time and for any reason the total demand for the Products should exceed the total supply of the Products that is available to the Company through its usual sourcing arrangements, the Products that are to be supplied under the Agreement shall be supplied in such quantity as the Company decides to allocate in its sole discretion. In such case, the Company shall not be in breach of the Agreement, negligent or otherwise liable to the Customer if such allocated quantity is less than the quantity ordered by the Customer.
3.3 The Company reserves the right to, without notice to the Customer, make any changes to the specifications of the Products and/or Services that are necessary to comply with any statutory or other legal requirements or that do not materially affect the performance of the relevant Products and/or Services.
3.4 A Purchase Order that the Company accepted may not be cancelled, modified or rescheduled by the Customer except with the explicit prior written consent of the Company, which shall not unreasonably be withheld. The Company shall be entitled to indemnification against all losses (including loss of profit), costs (including the cost of all labour and materials used), damages and expenses incurred by the Company as a result of a cancellation, for an amount ranging from a minimum of five per cent (5%) up to a maximum of one hundred per cent (100%) of the total value of a cancelled Purchase Order, depending on the type of product (example: living organisms subject to complex forecasting and limited shelf life vs. biopesticide with longer shelf life). The Company shall calculate the amount of the indemnification and communicate such amount to the Customer as soon as possible.
3.5 Under no circumstances can a Purchase Order be modified or cancelled as from the date of packaging of the Products.
Article 4. Prices
4.1 The prices quoted by the Company in an offer are always indicative, meaning that they are based on the information that is available at the time that the offer is made. Consequently, the quoted prices are subject to fluctuations in prices of materials, fluctuations in daily prices, and market fluctuations and are provided only as non-binding guidelines
4.2 The prices agreed by the Parties in the Agreement are fixed and irrevocable, unless the Agreement explicitly defines the circumstances that may lead to a price change and explicitly determines the manner of implementing such a price change.
4.3 Prices are in EUROs. All prices are exclusive of the cost of transport and delivery Ex Works (EXW) Incoterms 2020. All prices are also exclusive of applicable value-added tax (VAT), sales tax, use tax, consumption tax and other additional taxes (other than taxes based on the Company’s net income). All taxes shall be paid by the Customer to the Company unless the Customer provides the Company with a valid certificate of exemption that is acceptable to the competent tax authority. The Customer shall make all payments to the Company without reduction for any withholding taxes, which shall be the sole responsibility of the Customer. All prices are exclusive of any import duties and similar charges that the Company may legally or statutorily levy or collect in accordance with such laws or statutes.
Article 5. Delivery
5.1 The Company shall fulfil its obligation to deliver the Products when it has made the Goods available to the Customer at the Company’s premises (i.e., factory, warehouse, etc.) in accordance with EXW Incoterms 2020.
5.2 The Company shall make all reasonable efforts to deliver the Products in a timely and diligent manner and in accordance with these General Terms and Conditions as well as with any special conditions that were included in the Agreement. Quoted delivery dates are always estimates and not guaranteed and the Company shall not be liable for any delay in the delivery of the Products however caused. Moreover, the Company shall only be obliged to supply within the scope of its existing capacities and taking account of prior orders placed by other Customers. Unless previously agreed in writing by the Parties, delivery time shall not be an essential element of any Agreement and any delay in delivery shall not entitle the Customer to indemnity for loss or damages incurred, compensation, price reduction, suspension of payment, or dissolution of the Agreement. All Products may be delivered by the Company in advance of the quoted delivery date.
5.3 For each delivery, the quantity of Products as defined in writing in the delivery documents (e.g., the packing slip or delivery note) by the Company or its contractor at the time of dispatch from the Company’s or its contractor’s place of business shall count as conclusive evidence of the quantity received by the Customer, unless the Customer can provide conclusive evidence of the contrary.
5.4 The following shall not be considered as shortcomings: minor and/or insignificant deviations in quantity, quality, packaging, volumes and/or other similar aspects that are customary in the sector or technically unavoidable.
5.5 The Customer agrees to accept partial delivery of ordered Products unless mutually agreed otherwise in writing by the Parties. In case of partial delivery, each delivery shall constitute a separate Agreement. Any failure, suspension, or delay by the Company of the delivery of any of the Goods or the discovery of any defect in any of the Goods thus delivered shall not entitle the Customer to cancel the remainder of the Agreement and shall not affect the obligations of the Customer in respect of the remainder of the Goods.
5.6 The Company shall not be liable for any non-delivery of Products (even if caused by negligence of the Company or its contractor), unless the Customer gives written notice to the carrier of the Products and the Company within fourteen (14) calendar days from the date that the Goods should have been received in the ordinary course of business.
Any liability of the Company for Products that were not delivered shall, at the Company’s discretion, be limited to i) delivering the relevant Goods within a reasonable time, ii) issuing a credit note against each invoice issued for those Goods, iii) any alternative, appropriate remedy.
5.7 If a reasonable doubt exists as to the Customer’s ability to fulfil its payment obligations, the Company reserves the right to suspend transport or deliveries until satisfactory securities have been provided or advanced payment has been made, as requested by the Company at its sole discretion.
Article 6. Transport and risk
6.1 Risk of damage to and theft or loss of the Products shall pass to the Customer in accordance with EXW Incoterms 2020.
6.2 In case the Company arranges the transport, the Company reserves the right to determine or arrange for route and means of transportation, as well as packaging of the Goods.
Article 7. Ownership and retention of title
7.1 The legal and equitable right to and ownership of the Products shall not pass to the Customer until the Company has received in full (i) all sums due to it in respect of the Goods and (ii) all other sums due or to become due to the Company by the Customer on any account whatsoever. The Company shall be entitled to register the retention of title in the National Pledge Register insofar as the amounts due (principal, costs and interests) have not been paid in full by the Customer.
7.2 In the event of seizure of the Goods under retention of ownership by any third-party, the Customer shall immediately disclose the Company’s ownership to such third-party and notify the Company thereof to enable it to assert its ownership rights. To the extent that the third-party is unable to reimburse the Company for the legal costs incurred, the Customer shall be liable for payment of such costs.
7.3 Should the Company terminates the Agreement due to a breach by the Customer of any terms of the Agreement, in particular in the event of delayed payment, the Company shall be entitled to demand return of the Goods under retention of ownership.
Article 8. Customer’s obligations and Company Disclaimers
8.1 The Customer shall be aware that the trade in and application of the Products require a high level of supervision and expertise. Consequently, the Customer shall comply with all instructions, advice and manuals that the Company prepared with regard to the transportation, storage, placement, handling and feeding of the Products in order to give the Products the best possible chance to succeed in their intended use. The Company reserves the right to modify these instructions, advice and manuals based on technical evolutions and progressive insights. The Customer understands that the use of certain agrochemical substances may be detrimental to some of the Products and should, in case of doubt about the compatibility of these agrochemical substances with the Products, refer to his usual contact person at the Company.
8.2 The Customer declares to be in compliance with all applicable regulatory requirements and legislation regarding the TRACES (Trade Control and Expert System), handling, storage and application of the Products. If a confirmed Purchase Order cannot be shipped due to the Customer’s failure to comply, the full cost of the Goods, transport, and any related expenses will be invoiced to the Customer. In addition, the Customer declares that it shall not use the Products for any illegal or unauthorised purposes or in violation of any applicable national or supranational law, including, without limitation, any Intellectual Property laws.
8.3 Products requiring official authorisations as plant protection products (e.g., under Regulation (EC) No 1107/2009 in the European Union and under similar legislation in other territories) can only be used by parties in possession of a valid license. The Customer shall therefore be responsible and vigilant to supply the Products only, either through sale or through direct application to the crop, to parties in possession of such valid licenses for using the Products.
8.4 The Customer undertakes to resell the Products only in their original packaging and to refrain from any repackaging, fractionating or otherwise modifying the original features of the Products. The Customer also undertakes to transmit all instructions, guidelines, and literature received from the Company to his own customers.
8.5 The Company makes no guarantees regarding the suitability the Goods and Services nor as to the final result of the application of the Products and Services as the outcome may depend on multiple environmental and technical conditions beyond the control of the Company. However, the Company will provide regular technical advice in order to enable the Customer to apply the Products in the best possible way under an Integrated Pest Management Program.
Article 9. Quality and approval
9.1 The Company guarantees that the quality of each of its Products and Services corresponds to the specifications on the packaging label, the instruction sheet, or any other documentation supplied with the Products and/or Services.
9.2 The Customer shall thoroughly inspect all Products, upon arrival and before commissioning thereof, for visible non-conformity or defects in terms of quantity and quality (Visible Defects / Visibly Defected Product). Between the moment of arrival and the moment of commissioning, the Products shall be stored safely and carefully in such a way that no damage can occur to them, in accordance with the instructions on the labels, packaging, and instruction sheets supplied with the Products and further added by the Company. Following the commissioning, or even partial commissioning, of the delivered Goods, the Customer shall be deemed to have irrevocably and fully accepted the Products and to acknowledge that the Goods are free of any Visible Defects.
9.3 The Company shall not be liable for any breach of the warranty in Article 9.1 unless:
9.3.1 in the event of a Visible Defect upon dispatch (i.e., to the shipping boxes / pallets): the Customer gives written notice of the Visible Defect in the delivery documents and subsequently notifies the Company of the damage or the defect before twelve o-clock noon (12:00) of the day after receipt of the Products.
9.3.2 in the event of a Visible Defect upon receipt (i.e., deviation from the number of units): the Customer (i) gives the Company a written notice of the Visible Defect within forty-eight (48) hours from the receipt of the Products and (ii) either gives the Company a reasonable opportunity to examine the Goods after receipt of the notice or (if requested by and at the expense of the Company) returns the Goods to the Company’s registered office for examination. If absence of such due notice, the Customer shall be deemed to have accepted the Goods.
9.4 The Company shall, at its option, either replace the Visibly Defected Product or the defective part thereof, or refund the price of the Products concerned or the defective part thereof, as the case may be, at the pro-rata rate of the Agreement. At the request and expense of the Company, the Customer shall return the Visibly Defected Products to the Company.
9.5 Any complaints by the Customer about other defects in the quality of Products must be notified in writing to the Company within a period of five (5) calendar days after the date of discovery of the defect or after the moment upon which the Customer should reasonably have discovered the defect. If the notified quality defect is accepted by the Company, the Company shall, at its option, either replace the defected Product or the defective part thereof, or refund the price of the Products concerned or the defective part thereof, as the case may be, at the pro-rata rate of the Agreement.
9.6 All Goods under claim must, where possible, be quarantined and therefore, stocked separately, clearly marked, and not used until the claim is settled, unless the Company agrees otherwise in writing. No claims will be accepted once the Goods are destroyed.
9.7 Furthermore, the Customer shall lose all rights to claim defects if the Goods were improperly handled or stored by or for the account of the Customer.
Article 10. Invoices and terms of payment
10.1 Unless otherwise agreed in writing by the Parties, all invoices must be paid within thirty (30) calendar days from the invoice date, in the currency in which the invoice is drawn up. The payment system used to settle the invoice shall not incur any costs to the Company. All payments shall be made in full without deduction of any right of set-off or counterclaim.
10.2 If the Customer defaults on any payment due under the Agreement, the Company shall be entitled to take any or all of the following measures, without prior notice to the Customer:
10.2.1 wholly or partially suspend the Agreement, stop all Products in transit, and discontinue all Services without any right to compensation for the Customer;
10.2.2 charge the Customer a monthly interest of one percent (1%) on any unpaid amount until full payment is made as well as a lumpsum payment to cover collection costs, of ten percent (10%) of the total unpaid amount, with a minimum amount of one hundred and fifty EUROs (€150), without prejudice to the right to claim additional damages;
10.2.3 settle any amounts due by issuing a credit note, balance or other liability on account of the Company to the Customer.
10.3 In the event of non-payment, all permitted methods of payment shall expire and all invoices, even if they are not yet due, shall become immediately due and payable.
10.4 Cheques and bills of exchange shall only qualify as payment after their redemption. The drawing and/or acceptance of bills of exchange or other negotiable documents does not imply a novation and does not constitute a deviation from the General Terms and Conditions. The costs of accepting cheques and bills of exchange shall always be borne by the Customer.
Article 11. Exclusion and limitation of liability
11.1 This Article 11 set out the entire liability of the Company (including any liability for the acts, negligence and omissions of its Affiliates, and its and its Affiliates’ directors, employees, shareholders, agents, subcontractors and other direct or indirect auxiliary persons) for any breach of the General Terms and Conditions or arising out of or in connection with an Agreement between the Parties.
11.2 To the maximum extent permitted by law, all warranties, conditions and terms implied by statute, law or otherwise are excluded from this Agreement, except as expressly provided in these General Terms and Conditions.
11.3 Nothing in these General Terms and Conditions excludes liability for causing death or personal injury or for fraud or fraudulent misrepresentation, nor limits such liability in cases where it would be unlawful for the Company to exclude or attempt to exclude its liability.
11.4 Subject to the provisions under articles 11.2 and 11.3:
11.4.1 the Company’s, its Affiliates’, and its Affiliates’ directors’, employees’, shareholders’, agents’, subcontractors’ and other indirect or direct auxiliary persons’ total liability under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the total value of the Agreement, exclusive of VAT.
11.4.2. Neither Party, nor its Affiliates or its or its Affiliates’ directors, employees, shareholders, agents or subcontractors or direct or indirect auxiliary persons shall be liable for any indirect, consequential, incidental or special loss, damage, costs or expenses nor for any claim for the aforementioned, including but not limited to loss of profits, loss of business, loss of business opportunities, loss of revenue, or depletion or goodwill, whether or not the other Party has been notified of the possibility of such losses.
11.5 Each Party hereby excludes any extra-contractual liability related to the formation, execution, and termination of the Agreements and guarantees that its affiliated persons exclude this with respect to the other Party and the directors, employees, shareholders, and direct or indirect auxiliary persons of such other Party and its affiliated persons to the fullest extent permitted by law.
11.6 The Customer shall hold harmless and indemnify the Company from and against any and all claims by third-parties for damage caused by or otherwise related to Products and/or Services, including, without limitation, product liability claims against the Company in its capacity as manufacturer of the Products. This indemnification shall not apply to the extent that such damage is directly caused by a breach of this Agreement or by wilful misconduct or gross negligence on the part of the Company.
11.7 The Company shall not be liable for any damage to persons, animals, plants or objects inside and/or outside the greenhouses, crops and/or crop areas caused by bumblebees or biological control agents or any other Products commercialized by the Company, if the Customer has failed to implement the necessary precautions and measures as advised by the Company and in accordance with customary prudence. The Customer undertakes to inform all his employees, agents, contractors, and any other individuals who may potentially come into contact with the Products, that stings from bumblebees and/or biological control agents may cause serious consequences for humans or animals, in particular to those with heightened sensitivities. The Customer shall ensure that access to the greenhouses is restricted to individuals who have been properly informed of these risks and adequately instructed to avoid exposure.
11.8 The Company shall not be liable for any damage, loss, or liability arising from the non-compliance with TRACES (Trade Control and Expert System), storage, handling, or use of its Products that does not comply with the instructions provided on the product label, safety instructions or in any other written documentation issued by the Company. The Customer undertakes to adhere strictly to these instructions and to consult the Company for guidance whenever in doubt.
11.9 Where the Company acts as an intermediary, the warranty on the supplied Products shall be limited to the terms provided by the supplier or manufacturer. The Company shall not provide any additional warranty beyond what is granted by the manufacturer or supplier.
Article 12. Confidential Information
12.1 The Customer agrees to keep all Confidential Information in strict confidentiality and not to use or disclose such information to any third party except if and as required by law and subject to prior notification to the Company. The Customer further agrees to limit access to Confidential Information to those individuals who need to have knowledge thereof to perform their duties and are bound by written confidentiality obligations that offer a level of protection for the Confidential information at least equivalent to that provided by these General Terms and Conditions.
12.2 The Company agrees to keep in strict confidentiality and not to disclose to any third party, all sensitive information that is provided by the Customer and that is marked as “confidential”, “proprietary”, or with similar terms.
12.3 Upon termination of the legal relationship between the Company and the Customer, these confidentiality obligations will continue to apply for an additional period of five (5) years.
Article 13. Intellectual Property
13.1 All Intellectual Property rights of the Company of whatever nature in respect of the Products and/or Services, their packaging or other material supplied with the Products and/or Services shall remain the absolute property of the Company and vested in the Company.
13.2 The Customer shall not reproduce, display or otherwise use any Trademark without the Company’s prior express written consent. Unless otherwise agreed in writing, the Customer shall not be allowed to use Trademarks, to distinguish its products and/or services from the products and services of other companies, except for trading the Products in their original packaging on which Trademarks, signs and other indications have been affixed by the Company. If the Products are resold, this provision shall also be imposed on the Customer’s buyer and on all subsequent buyers.
13.3 The Customer shall not alter or remove from the packaging of the Products any Trademarks (including, without limitation, any corporate or trade names and labels, luggage tags, or indications of any Intellectual Property right of whatever nature) unless expressly agreed upon in writing by the Company or otherwise permitted by law.
13.4 The Customer acknowledges that any marketing of the Products that it undertakes whereby a label, batch number, luggage label, or sell-by date is removed, erased or altered in contravention of this article 13 constitutes a serious breach of these General Terms and Conditions. In such case, the Customer shall bear all legal, financial and judicial consequences that may result therefrom, at his sole expense and risk.
13.5 The Customer shall refrain from any use of the Products that deviates from the intended use as indicated on the label, on the packaging or on the written information material provided by the Company. In particular, the Customer shall refrain from any use of the Products that is intended to copy the production process of the Products or to reproduce the Products. This includes, without limitation, the rearing or breeding of bumblebees or other beneficials for reproductive purposes, the cultivation of micro-organisms that are contained in some of the Products, or the reverse engineering of Products that contain non-living active ingredients and other materials.
13.6 The Customer shall at all times respect, and make reasonable efforts to protect, the Intellectual Property rights of the Company. The Customer shall immediately notify the Company of any infringement by third parties of the Company’s Intellectual Property rights of which he becomes aware.
Article 14. Termination
14.1 Without prejudice to any other rights or legal remedies, the Company shall have the right to extrajudicially terminate by written notice, either unilaterally and with immediate effect, or after sending a notice of default with a reasonable recovery period if still useful, any Agreement in force without owing any compensation, if:
14.1.1 the Customer incurs an Insolvency Event;
14.1.2 the Company has, at any time, reasonable grounds to believe that, in all probability, an Insolvency Event will occur within thirty (30) calendar days;
14.1.3 the Customer ceases or threatens to cease trading;
14.1.4 the Customer commits a material breach of any obligation under this Agreement or any related contract, and fails to remedy such breach within a reasonable cure-period after receiving written notice from the Company; or
14.1.5 the Customer encumbers the Products before ownership thereof passes to the Customer.
14.2 The termination rights described above are without prejudice to any right the Customer may have to terminate the Agreement under comparable circumstances.
Article 15. Compliance with international sanction
15.1 The Customer undertakes that neither it nor any of its Related Persons is or shall become a designated target of any Sanctions, or a person with its ordinary residence or registered offices in or an entity incorporated under the laws of a country or territory subject to Sanctions.
15.2 The Customer undertakes and shall cause its agents, contractors and representatives, to fully comply with the requirements of all applicable Sanctions in the performance of this Agreement. Without prejudice to the foregoing, the Customer agrees to cooperate with any reasonable requests for information and/or documentary evidence to support and/or verify compliance herewith.
15.3 The Customer undertakes that it will not make payments to the Company via such country, bank, entity, body or facility, as would cause a breach of Sanctions by the Company.
15.4 The Customer further undertakes that the Goods will not be used by its buyers or supplied by its buyers in a way which would cause a breach of Sanctions.
15.5 Each and every undertaking in this clause shall be deemed to be an essential condition of the Agreement and breach of any of these undertakings by the Customer entitles the Company to terminate the Agreement immediately and unilaterally without any further notice nor any further liability towards the Customer. The Customer shall immediately notify the Company in writing of any changes or circumstances that may result in a breach of this clause.
Article 16. Compliance with anti-corruption and anti-money laundering laws
16.1 The Customer undertakes and shall cause its agents, contractors and representatives to maintain the highest standards of integrity and transparency in all dealings involving Public Officials and to fully comply with all applicable Anti-Corruption and Anti-Money Laundering including by keeping transparent and documented evidence of expenses and payments resulting from the Agreement.
16.2 In particular, the Customer undertakes and shall cause its agents, contractors and representatives i) not to interact with a Public Official other than in the framework of a legitimate business activity or the legitimate performance of a contract and ii) not to, directly or indirectly, pay, offer, give or promise to pay, or authorize the payment of any monies or other things of value to, or confer a financial advantage on such Public official, nor to undertake any other action intended or which may be perceived as to improperly influence the decisions or actions of such Public Official.
16.3 Each and every undertaking in this clause shall be deemed to be an essential condition of any Agreement and breach thereof entitles the Company to terminate the Agreement immediately and unilaterally without any further liability towards the Customer.
16.4 If the Customer becomes aware of any litigation, arbitration, or investigations in relation to the activities or transactions related to this Agreement, the Customer agrees to promptly notify the Company in writing of such event. As the case may be, the Customer shall, at the Company’s request and expense, provide all necessary cooperation, information, and assistance reasonably required for the Company to address and resolve such matter effectively. This may for instance include attending meetings or providing all the necessary documentation.
Article 17. Compliance with Laws and Company’s Code of Conduct
This provision 17 shall apply in case the Customer is acting as a distributor of Products.
In the context of the performance of any Agreement, the Customer commits to always comply with i) all laws and regulations, including, but not limited to, fair labour, equal opportunity, environmental and trade compliance laws and regulations and ii) the Code of Conduct as available via the following hyperlink: Core values – BioFirst Group.
Article 18. Data Privacy
All personal data collected will be treated in accordance with applicable legislation. The most recent version of the Company’s privacy statement is available via the following hyperlink Privacy Policy.
Article 19 Corporate Social Responsibility
19.1 The Customer undertakes to take the necessary measures to ensure that forced labour and child labour are not present in any part of its operations, including those of its subcontractors and suppliers, regardless of any permissibility under applicable local laws.
19.2 The Customer undertakes to adhere to the principles set forth in the International Bill of Human Rights adopted by the United Nations and to complying with all applicable laws, statutes, and regulations prohibiting slavery and human trafficking and implement and maintain measures to safeguard occupational health and safety within any jurisdiction where its business operates.
19.3 The Customer undertakes to comply with all applicable environmental laws and regulations in relation to its operations. The Customer shall reasonably consider promoting environmentally responsible practices.
Article 20. Applicable law and dispute resolution
20.1 Without prejudice to the Belgian legal provisions on conflicts of law, Belgian law shall apply exclusively to the Agreement, offer, Purchase Orders, quotations, invoices and all possible legal relationships that may arise therefrom. Any application of the Vienna Convention on the Sale of Goods is excluded.
20.2 Both Parties agree to use reasonable efforts to seek an amicable settlement for any disputes that may arise out of or relate to the conclusion, validity, performance and/or termination of the Agreement (Dispute). If reasonable efforts to do so fail, the Parties shall have recourse to the authority described in article 20.3 hereunder.
20.3 Any Dispute which the Parties fail to settle amicably, shall be exclusively submitted to the competent court of the jurisdiction in which the registered office of the Company is established, or, at the Company’s sole option, the competent court of the Customer’s registered office.
Article 21. Miscellaneous
21.1 Severability. If any provision of the Agreement or these General Terms and Conditions, or any part of such provision, is declared null and void, the remaining provisions thereof, or any part of such provisions shall remain unaffected. Both Parties shall in such case replace the provision, or any part of such provision, that was declared null and void with a new and valid provision, or with a new and valid part of such provision, that is as close as possible to the original meaning of the Parties and of the Agreement or these General Terms and Conditions.
21.2 Waiver. Either Party’s failure to enforce any provision of these General Terms and Conditions or an Agreement shall not be deemed a waiver of the right to thereafter enforce that or any other provision of these General Terms and Conditions or an Agreement.
21.3 Force Majeure. Neither Party shall be liable to the other Party for any breach of these General Terms and Conditions or the Agreement or for any delay or failure to perform any of its obligations if and to the extent such breach, delay or failure was caused by Force Majeure. In the event of Force Majeure:
21.3.1 the Party facing the Force Majeure event shall, as soon as commercially practicable, notify the other Party of such Force Majeure event provided that the Party facing the Force Majeure event shall incur no liability for a failure to give such notice;
21.3.2 the Party facing the Force Majeure event’s duty to perform shall be suspended for the duration of the Force Majeure event;
21.3.3 the time of performance for the Party facing the Force Majeure event shall be extended for a period equal to the duration of said Force Majeure event;
21.3.4 either Party may, in the event that a Force Majeure event should persist for more than ninety (90) consecutive calendar days, by written notice to the other Party cancel an Agreement to the extent that Products and/or Services remain undelivered under said Agreement. Upon such cancellation, the Company shall have no obligation to deliver and the Customer shall have no obligation to accept delivery of or to pay for the undelivered Products and/or Services, but the Agreement shall remain in full force and effect in respect of all Products and/or Services that had already been delivered.
21.4 Assignment. The Company shall always be entitled to transfer its rights and obligations under the Agreement or a Purchase Order to a third party. The Customer shall not be entitled to transfer his contractual rights and obligations, except with the prior explicit written consent of the Company.
21.5 Mitigation rights: While the rights and obligations contained in these General Terms and Conditions and in particular the obligations for Customer are considered by the Parties to be reasonable to protect the legitimate interests of the Parties, it is hereby agreed and declared that if any such obligations are judged to be void as going beyond what is reasonable in all the circumstances for the protection of the interests of the Parties but would be valid if part of the wording thereof were deleted or the amounts reduced, the said obligation shall apply with such modification as may be necessary to make it valid and effective.
20250509 – Biobest Group NV – General Terms and Conditions of Sale