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General Terms & Conditions

The following general terms and conditions are applicable to any order concluded by the legal entity Carambar and Co. or the production plants affiliated to the CPK group (both CPK Production France and CPK Production Strasbourg) hereinafter referred to as the “Buyer” and any supplier of goods or services hereinafter referred to as the “Supplier”.

Under this Purchase Order (“PO”), the Buyer agrees to purchase and the Supplier agrees to sell the goods and services listed on this PO. The Supplier may accept this PO by informing the Buyer or by beginning to perform under it, whichever the Supplier does first. The Supplier cannot change the terms of this PO and the Buyer rejects any terms the Supplier proposes on its forms or otherwise.

1. Prices and Payments. The Supplier will sell to the Buyer at the price stated on this PO. The price stated on this PO will always be final. If no price is stated, the price will be the lower of (a) the last price charged or quoted or (b) the lowest applicable market price while the Supplier performed under this PO. The price includes all costs unless the Buyer agrees in advance and in writing to reimburse the Supplier, in which case the Supplier will list the costs on the bill without markup after any discount or rebate and provide copies of original receipts. The Supplier will not bill the Buyer for goods until the Supplier have delivered them nor for services until the Supplier have performed them. The payment period on this PO will begin once the Buyer accepts the goods or services or once a correctly drafted bill has been issued, whichever is later.

The Buyer commits to pay the Supplier within a sixty-day period from the date of issuance of the concerned bill, except if stated differently by any applicable law. The bill issued by the Supplier must contain the PO number and any other undertakings provided for by article L. 441-3 of the French commercial code. The Buyer has opted for the dematerialized processing of its Supplier invoices. The bills are to be sent in PDF to the Email address specified on the order. Except otherwise provided for in the order, the bills shall be paid by wire transfer.

According to applicable law, the Buyer shall be able to off-set any due amounts in the event that such amounts are certain, of a fixed amount and accounted for.

In the event that the Supplier claims late payment fees, the said fees shall be limited to an amount equivalent to the application of a rate equals to three time the legal interest rate, in addition to the payment of a recovery fee of forty (40) euros, without any prior notice being necessary.

2. Obligations. The Supplier will ensure that all goods (including their packaging) and services will: (a) comply with the specifications of the Buyer (or with the specifications of the Supplier if they have been approved) and are conform to all samples approved by the Buyer; (b) be free of defects, correctly labeled, made with new materials, and be of good quality and workmanship; (c) be suitable for their intended use in or with food products; (d) not infringe, nor will the Buyer use of them infringe, anyone’s intellectual property rights or any other rights; (e) not impart any unintended flavor, odor, texture or color to any of the products; and (f) be performed diligently and in a professional and efficient manner. The Supplier will ensure that the Supplier and the goods and services comply with: (i) all applicable laws, regulations, and industry standards of the countries in which the goods are delivered or the services are performed and/or will be used (provided the Buyer has advised the Supplier of those countries), and (ii) the general Quality requirements transmitted to the Supplier. The Supplier will only deliver goods from a production site approved by the Buyer. The Supplier must tell the Buyer immediately if the Supplier learns of any potential quality, safety or labeling problem which may affect the goods and services, or any potential violation of the Supplier obligations in this PO. The Supplier hereby assigns to the Buyer any warranties related to the goods and services, or if the Supplier cannot assign them, the Supplier agrees to make claims under them on the Buyer’s behalf at the Buyer’s request. The Supplier will ensure that the Supplier’s employees, agents, or subcontractors comply with this PO and, when on the Buyer’s premises, the Buyer’s quality, safety and security requirements.

3. Rejection. The Buyer has the right to inspect the goods and services within a reasonable time upon delivery or implementation, and to notify the Supplier of any non-compliance that exists and the Supplier will not claim forfeiture of the Buyer’s warranties in case of delayed inspection and notification. The Buyer may at its sole discretion reject and return to the Supplier at the Supplier expense, all or any part of the goods delivered in excess of the quantity ordered and/or which do not conform to the PO or to the Supplier above obligations. In such a case the Supplier will, at the Buyer’s discretion, deliver replacement goods or services that conform to the PO and the Supplier obligations within a reasonable time, or refund in full, or give an appropriate discount. At the Buyer’s discretion the latter may also purchase substitute goods or services at the Supplier cost. The Supplier will also compensate the Buyer for any losses or damages incurred in connection with any of the above. The Supplier will bear any costs incurred in connection with the delivery of replacement goods and services including (but not limited to) transportation, removal, examination,
installation, etc. The Supplier is responsible for testing, inspection, quality control, and of providing certificates of analysis from accredited laboratories to the Buyer.

4. Changes and Cancellation. Before the Supplier delivers the goods or performs the services, the Buyer may request changes. Negotiation will be implemented in order for the parties to find a fair adjustment to the price or applicable scale, in particular if the Buyer demonstrates that a change will reduce the Supplier costs or if the Supplier demonstrate that a change will increase its costs or affect its ability to complete this PO on time. The Buyer may cancel this PO with respect to any goods not yet delivered or services not yet performed by notifying the Supplier.

Upon reception of the notification, the Supplier will take all reasonable steps to minimize costs due to Buyer’s cancellation. As its exclusive remedy, the Buyer will pay the Supplier for the unavoidable costs incurred before receiving notice (less any savings realized from the Buyer’s cancellation) that the Supplier can document to reasonable satisfaction of the Buyer.

5. Delivery of Goods. The products shall be correctly and sufficiently packed, in an appropriate packaging which takes into account the nature and the required precautions in order to protect the goods from weather considerations, corrosion, loading and unloading, transport and storage considerations, vibrations or shocks etc. The Supplier will be responsible of any loss, missing goods or damages emanating from a packaging, a marking or a label incorrect or inappropriate.

Unless specified otherwise, the Supplier will deliver the goods to the Buyer as stated in this PO under Incoterms 2010. If the delivery terms are not specified, they will be DDP to the Buyer “deliver to” location stated in this PO. Any fix delivery date or term agreed for in this PO shall be considered has a decisive conditions of the order; if the Supplier is late in the deliverance of the goods or the performance of the services, the Buyer may cancel the PO and may not pay for goods not delivered or services not performed at the agreed time. The Buyer may purchase substitute goods or services at the Supplier’s costs. The Supplier will compensate the Buyer for any other loss incurred. The Supplier will deliver on weekdays during the Buyer’s normal business hours. The Supplier will properly label all units with its name, description of goods, PO number, batch number and if applicable “best before date” and any other identifying information required by the Buyer. The Supplier will provide accurate and complete information on all shipping and customs documents, including a description of the goods, country of origin and manufacture, currency, delivery terms
and the actual manufacturing site in case the goods are ingredients and food contact packaging materials.

6. Indemnification. The Supplier will indemnify, defend and hold the Buyer (and its affiliates, employees, and agents) harmless from any and all losses, damages, fines, penalties, and expenses (including reasonable legal fees) arising from third party claims resulting from actual or alleged breaches of this PO, negligent acts or omissions, or willful misconduct by the Supplier or its employees, agents, or subcontractors.

In addition, the Supplier will take responsibility for any financial consequences, either direct or indirect, in the event of a withdrawal, suspension, consignment, return with reimbursement of the client, modification and/or destruction of its products, not taking into account if whether these measures have been ordered by public authorities (including law courts) or have been voluntarily undertaken, and whatever the given motive may be, especially (but not limited to) in the event of a hidden flaw, a lack of conformity to a norm or regulation, or a security default.

7. Insurance. The Supplier will maintain, at its cost, a commercial general liability insurance covering its obligations under this PO with combined single limits of at least EUR 4,000,000 per occurrence and in the aggregate (in relation to physical, material and immaterial damages). If its employees will be present on premises of the Buyer, the Supplier will also maintain, at its cost, worker’s compensation or local equivalent coverage as and in amounts required by applicable law, and automobile third party liability coverage with a combined single limit of EUR 1,000,000 per occurrence or of the amount required by applicable law of the country where the vehicle is in use whichever is greater. The Supplier will ensure that its carrier waives rights of subrogation against the Buyer.

To the Buyer’s request, the Supplier must address the general and professional civil liability insurance certificates dated of less than six months.

8. Dispute Resolution and Governing Law. If the parties cannot resolve a dispute regarding this PO through good faith negotiation, it will be resolved by decision of the commercial courts competent in regard to the Buyer’s French registered office. The applicable law is French law with the exception of the provisions of The Vienna Convention on the International Sale of Goods which will not apply to this PO.

9. Uncontrollable Events. If either party is unable to comply with this PO because of events beyond its reasonable control, that party will promptly notify the other in writing and will make reasonable efforts to restore its ability to perform within 10 days. If the inability to perform continues for more than 10 days, the other party may cancel this PO immediately, without costs or penalties, by giving written notice to the party unable to perform. Unexpected cost increases caused by events or changing market conditions, and labor strikes, work slowdowns, or other actions undertaken by the Supplier’s personnel at the Supplier’s facility are not uncontrollable events according to the French civil code and the French courts ‘case law.

10. Audits. The Buyer may audit any of the Supplier’s facilities and records involved with this PO to evaluate its quality and food protection procedures and their compliance with the specifications (“Quality Audits”). The conformity with the present BC of pricing, pass-through costs, reimbursable expenses or other financial provisions conform to this PO (“Financial Audits”), will be besides controlled. The Buyer may conduct Quality Audits and Financial Audits itself or through third-party representatives selected by the Buyer or that the Supplier selects from a pre-approved list, being understood that the Supplier will not request any auditor to sign an additional agreement in order to conduct the audit. The Buyer may also require that the Supplier completes a questionnaire either in lieu of or in advance of an audit, or that the Supplier submits information to a third-party selected by the Buyer to manage audit information. For Quality Audits and CSR Audits, the Supplier will cooperate with reasonable efforts with the Buyer to assess the compliance. The Buyer may request that the Supplier has a third party audit performed according to the Global Food Safety Initiative (GFSI) accredited certification systems. If the Supplier refuses any audit, the Buyer may withhold payment and/or may cancel the PO.

11. Confidential Information. Any confidential information that the Supplier learns about the Buyer in connection with this PO, including the PO itself, is owned by the Buyer. Consequently, the Supplier may not disclose it to any third party. The Supplier may only use confidential information of the Buyer in order to perform its obligations under this PO, and may share it only on a need-to- know basis with the Supplier’s employees (and other third parties previously approved by the Buyer who have signed confidentiality agreements reasonably acceptable to the Buyer). The Buyer owns the confidential information and the Supplier must return it and all copies to the Buyer or dispose of it in a manner approved by the Buyer on its request.

12. Assignment of Intellectual Property Rights. If the Supplier or its permitted sub-contractors design or develop on behalf of the Buyer products which could be subject to intellectual property rights’ protection, then all these intellectual property rights, including trademarks, copyright, patent and design rights shall belong to, and be automatically vested by the Buyer (as legally possible) and the Supplier will, at the Buyer’s request and expense, sign or submit such confirmatory assignments to signature as the Buyer may require.

If the Supplier or its permitted sub-contractors would have to use some of the Buyer’s intellectual property rights within the design or development of products on behalf of the Buyer, the Supplier agrees that these intellectual property rights, including trademark, copyright, patent and design rights are the exclusive property of the Buyer and that the design or development do not infringe any valid patent, copyright, trade secret or other intellectual property or other rights for the Supplier.

13. Taxes. Unless both parties agree otherwise in writing, each party will be responsible for its own respective taxes as required by law. If the Supplier is required by law to collect a tax (e.g., state sales tax) or if the Buyer is required to withhold a tax, then the required party will give the other the opportunity to demonstrate and document how such taxes may be mitigated (for example, by providing a sales tax exemption certificate).

14. Corporate Social Responsibility. The Supplier will comply with the following in performing under this PO:

(a) Forced Labor. The Supplier will not use any forced labor, which means any work or service performed involuntarily under threat of physical or other penalty. The Supplier shall respect the freedom of movement of its workers and will not restrict their movement by controlling their identity documents, by withholding money or by taking any other action to prevent workers from terminating their employment. Any worker entering into an employment agreement with the Supplier should do so voluntarily.

(b) Child Labor. The Supplier will not directly (or indirectly through the use of its subcontractors) employ any children under the age of 18 years of age unless it is legal, necessary, and the following are met:

(i) The Supplier will comply with the minimum employment age limit defined by national law or by the International Labor Organization (“ILO”) Convention 138, whichever is higher. The ILO Convention 138 minimum employment age is the local mandatory schooling age, but not less than 15 years of age (14 in certain developing countries), subject to exceptions allowed by the ILO and national law.

(ii) The Supplier will ensure that employees working in facilities that are manufacturing or packaging its finished products, serving as temporary employees to the Buyer, or present at its facilities, are at least 15 years of age (no exceptions allowed by the ILO or national law will apply).

(iii) The Supplier must demonstrate that their employment does not expose them to undue physical risks that may impair their physical, mental, or emotional development.

(c) Diversity and non-discrimination. The Supplier will hire, compensate, promote, discipline, and provide other conditions of employment based solely on an individual’s performance and ability to execute its task (except as otherwise required under collective bargaining agreements). The Supplier will not discriminate based on a person’s race, sex, age, nationality, marital status, ethnic origin, or any legally protected status.

(d) Harassment and Abuse. The Supplier will provide a workplace free from harassment, which can take many forms, including sexual, verbal, physical or visual behavior that creates an offensive, hostile, or intimidating environment.

(e) Safety and Health. The Supplier will (i) endeavor to provide safe working conditions, (ii) provide its employees with appropriate protection from exposure to hazardous materials, and (iii) provide its employees with access to potable water and clean sanitation facilities.

(f) Third-Party Representation. The Supplier will respect the decision of its employees to join and support an union as well as their decision to refrain from doing so where legally permitted.

(g) Working Hours and Compensation. Within the bounds of normal seasonal and other fluctuations in business requirements, the Supplier will (i) maintain a reasonable overall pattern of required working hours and days off for its employees so that total work hours per week do not regularly exceed industry norms; (ii) pay fair and timely compensation, including any required premium payments for overtime work; and (iii) advise new employees at the time of their hiring if mandatory overtime is a condition of employment.

(h) Disciplinary Practices. The Supplier will not use corporal punishment or other forms of mental or physical coercion as a form of discipline.

(i) Business Integrity. The Supplier will promote honesty and integrity in its business conduct by raising ethical awareness among its employees and providing direction and education on ethical issues. Furthermore, the Supplier will not pay or accept bribes, arrange or accept kickbacks, or participate in illegal inducements in business or government relationships.

(j) Environment and Sustainability. The Supplier will work to continuously improve its environmental performance by setting and then working toward quantifiable goals that reduce the environmental impact of the Supplier’s activities.

15. Anti-Bribery. In accordance with the French Law n° 2016-1691 dated December 9, 2016, known as “Sapin II”, the Buyer has adopted a corporate compliance program with the aim of preventing its business activities from being affected by corruptive practices.

Corruption is the offering, promising, giving, authorizing or accepting of any undue pecuniary or other advantage to, by or for any of a public official at the international, national or local level, a political party, party official or candidate to political office, and a director, officer or employee of a Party or to, by or for anyone else in order to obtain or retain a business or other improper advantage, e.g. in connection with public or private procurement contract awards, regulatory permits, taxation, customs, judicial and legislative proceedings.

The Supplier, acting on its behalf and on behalf of its affiliates, agrees to comply with all applicable anti-corruption laws and regulations.

Among other things, the Supplier will not offer or pay, directly or indirectly, money or anything of value for or on behalf of the Buyer (including its affiliates) to a government official (i) for the purpose of obtaining or retaining a business, (ii) of obtaining a business advantage or (iii) for any illegal purpose.

The Supplier will take reasonable measures to ensure that its subcontractors, agents or other third parties, subject to its control or determining influence, will comply with the here above provisions.

The Buyer shall have the right to conduct audits on the Supplier for determining compliance with these provisions or to request any certification of compliance with anti-corruption laws and regulations.

If the Supplier breaches the terms of this article, the Buyer may – at its discretion and without engaging its responsibility – either withhold further payments under this PO or cancel this PO immediately, without prejudice to any damages that might result from this breach.

16. Sub-contracting and Assignment. The Supplier will not sub-contract or assign any of its rights or obligations under this PO without a prior written approval of the Buyer, which can be refused without any legitimate reason. The Buyer may freely assign all or any portion of this PO without the Supplier’s consent. Should this be the case, the Buyer shall be released of any obligation under this PO.

17. Conflicts and Entire Agreement. If this PO refers to an existing agreement and if there are some discrepancies between such an agreement and the terms of these terms & conditions, the terms of that agreement shall prevail over these terms & conditions. Otherwise, this PO (along with any existing agreement referenced in this PO) is the entire agreement between the Supplier and the Buyer with respect to the goods and services, and no prior discussion, agreement, conduct, or
industry practice will affect it. Subsequent changes to the PO must be in a written document signed by both parties. The Buyer may modify these terms & conditions by stating so in this PO.

18. Independent Contractor. This PO does not create a partnership or joint venture between the parties nor confer on any person who is not a party to this PO any right to enforce any term of this PO. Each party is an independent contractor, has no authority to bind the other party, and is solely responsible for its respective employees and subcontractors.

19. Severability. If any part of this PO cannot be legally enforced, then the parties agree that the provision will be deemed modified as necessary to make it enforceable while remaining as consistent as possible with the parties’ intent as expressed in the PO.

20. Non-Exclusivity. This PO is not exclusive, and either party is free to enter into similar agreements with anyone else, unless otherwise stated on this PO.

21. Survival. The completion or cancellation of this PO, will not affect any rights and obligations that by their nature should continue.

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