GENERAL TERMS AND CONDITIONS OF PURCHASE

1. GENERAL

1.1 In these terms and conditions of purchase (“Conditions”) “Buyer” means the Difrax company that has issued a purchase order (‘’Order’’) or signed an agreement through its authorised representative and “Supplier” means the entity to which the Order is addressed or the entity that signed an agreement. The Conditions shall apply to all deliveries of products, materials, works or services (“Goods”) to Buyer and to all agreements entered into with Buyer in this regard. Signing an agreement or acceptance or execution of an Order by Supplier constitutes a contract (“Contract”).
1.2 The Contract is concluded exclusively on the terms and conditions stated in the signed written agreement, Order and these Conditions. (‘Written’ means: facsimile message, e-mail, EDI or ‘other electronic media’). Any and all general terms and conditions of Supplier or any other general conditions are expressly rejected, whether referred to in Supplier’s acceptance of the Order or elsewhere, appended to the order confirmation or posted on any website. Departures from these Conditions will only be valid if expressly agreed to in writing by Buyer.
1.3 In the event of any conflicts between the substance of the Contract on the one hand and these Conditions on the other, the provisions set out in the Contract have precedence.
1.4 Insofar as these Conditions are also drawn up in a language other than English, in the event of any conflict the English text shall always prevail.

2. OFFERS AND CHANGE OR CANCELLATION OF THE ORDER

2.1 All offers or acceptances of orders by the Supplier are binding and irrevocable.
2.2 By providing Supplier a written notice no later than seven (7) days before the delivery, Buyer may amend or change the Order or cancel the Order. If such order amendment would result in a significant change in price or delivery date, Supplier must notify Buyer in writing thereof without delay, calculating the new price and delivery date. Any requests for quotes by Buyer are without obligation. The order amendment shall take effect, if Buyer accepts in writing the new price and delivery date within ten (10) days from Supplier’s notification. The amended Order is subject to these Conditions.

3. PRICE

The price for the Goods shall be the price stated in the Contract between the parties. The price shall be fixed for the duration of the Year Contract unless otherwise agreed in writing. The price shall include all related costs, fees, charges or taxes including VAT, where applicable. Additional costs which have not been explicitly accepted in writing by Buyer are not eligible for payment. The raising of prices shall only be possible if such a possibility is expressly provided for in the Contract. In case the exchange rate of Euro (€)/US dollar ($) differs in such a way that it is higher than +10% or lower than -10%, the FOB price will be adjusted in consultation with the Supplier.

4. WARRANTY AND LIABILITY

4.1 Supplier warrants that the Goods shall in every respect comply with the Contract, these Conditions, applicable laws, regulations, any description, samples, drawings, plans and specifications applicable to Goods and/or agreed upon and shall be free from defects in design, materials and workmanship, and the Goods shall be of satisfactory quality and fit and functioning for their particular purpose communicated to Supplier during a period of 24 months dated from the date of the delivery and Buyer inspected and accepted the Goods, subject to the last moment, regardless of whether the Goods have been paid for. Goods must be compliant with all relevant regulatory requirements of the country of destination.
4.2 The Goods shall also be deemed defective if the Goods deteriorate or any characteristic of the Goods change after the risk has passed for reasons other than reasonable wear and tear or Buyer’s failure to comply with storing instructions issued by Supplier to Buyer prior to the delivery. This condition shall not apply if such deterioration is due to a third party (other than the Supplier’s sub-contractor or agent) or Force Majeure.
4.3 If any of the Goods are proven to have been inherently defective Supplier will, at Buyer’s discretion, make an appropriate adjustment in the original sales price of such Good or to replace the defective Goods at Supplier’s sole cost and expense. Moreover will Supplier be liable for the (financial) consequences of such an inherent defect. Buyer and possible legal authorities will decide what is appropriate in each case. If pursuant to this article (parts of) Goods delivered are replaced, the full warranty period shall apply to these (parts of) Goods as of the time of delivery. All storage and other costs related to the defective Goods shall be for the sole account of Supplier. Risk in the defective Goods shall at all times remain with Supplier.
4.4 The Supplier shall be liable for all damage which may occur to or through the goods supplied as a consequence of faults or defects in the goods supplied, such according to the above mentioned guarantee and also pursuant to the law or as a consequence of an act or omission by the Supplier or its personnel. The liability shall cover, inter alia, damage resulting from delay in delivery, damage to goods belonging to third parties, loss of profits, damage in connection with product liability and other indirect damage, which may be suffered by Buyer or by third parties.
4.5 The Supplier shall hold Buyer harmless and indemnify Buyer for any and all claims, costs, including legal costs, losses, suits, judgements from or against Buyer and/or third parties, including Buyer’s customers, in any way connected with or related to defects in the Goods or with the execution of a Contract. If Buyer is obliged to undertake a recall action in respect of third parties as a result of a defect in Goods supplied by the Supplier, the Supplier shall bear all the costs associated with the recall action.
4.6 The Supplier warrants that all Goods delivered shall not infringe on patents or other intellectual property rights or other rights of third parties. Supplier shall defend, indemnify and hold Buyer harmless from and against any and all liability, damage and loss (including reasonable legal fees and costs) incurred by Buyer as a result of any claim, demand or action by any third party against Buyer arising from any actual or alleged infringement of any Third Party IP Rights pertaining to Goods supplied by Supplier to Buyer. At Buyer’s sole election, Supplier shall promptly either to: (a) procure for Buyer the right to continue selling and/or using the affected Goods; (b) replace the affected Goods with non-infringing Goods; (c) modify the affected Goods so that those become non-infringing. The provisions of this Section shall not apply to any claim for infringement resulting solely from Supplier’s compliance with Buyer’s specifications.

5. PACKAGE

The Goods shall be properly packed, secured, marked in accordance with all applicable regulations related to such Goods and transportation or Buyer’s instructions if such are issued and despatched by Supplier at its expense so that they arrive in good condition and unharmed at the time and place of delivery specified in the Contract. The packing and the package materials are included in the price. Unless otherwise stated in the Contract, Buyer shall have no obligation to return packages or package materials.

    6.DELIVERY

    6.1 Delivery will take place at the agreed time and delivery address.
    6.2 Agreed delivery times are regarded as deadlines. By the mere act of exceeding the delivery period, the Supplier shall be in default without further written notice. The terms and conditions of delivery shall be separately agreed between Buyer and Supplier. All terms and conditions of delivery shall apply in accordance with the incoterms version in force at the moment of conclusion of the Contract.
    6.3 Supplier shall inform Buyer immediately of any likely delay and the new delivery date.
    6.4 If delivery or a part of it is delayed for reason other than Force Majeure or reason on part of Buyer, Buyer shall have the right to terminate the Contract, in whole or in part. In the event Supplier is in delay, Buyer is always entitled to purchase nearest equivalent goods from elsewhere and Supplier shall compensate Buyer the difference between the price in the Contract and the price of the goods acquired from elsewhere. In addition to the above, Supplier shall on demand pay to Buyer liquidated damages in the amount of two (2) per cent of the price of the Goods for each day of delay, however not exceeding twenty (20) per cent of the price of the Goods. Buyer shall be entitled to deduct the sum of liquidated damages from Supplier’s invoice. In addition to the amount of liquidated damages, Buyer shall be entitled to full compensation for damages incurred due to the delay. The foregoing does not limit Buyer’s rights and/or remedies pursuant to the law.
    6.5 The Supplier is only entitled to supply part-deliveries provided they have been agreed with Buyer and do not lead to an increase in expenses for Buyer. Buyer will be entitled to return any part-delivery(ies) not agreed at the expense and risk of the Supplier. Deliveries before the agreed dates can only take place after the prior written consent of Buyer and will not lead to a change of the originally agreed payment or warranty period.
    6.6 In the event that Buyer is not able to take receipt of (all) the Goods on the agreed date due to force majeure, a failure of their customers or postponement of delivery to their customers, non-performance or cancellation of the orders by their customers, the Supplier will at Buyer' request postpone (part of the) delivery without any extra costs for Buyer for a reasonable period to be determined by Buyer. In such case, the Supplier will store, preserve, protect and insure the Goods in a properly packed condition and separately and identifiably marked.
    6.7 If Buyer decides to accept the delay, Supplier must deliver the goods by air, on account of Supplier.

    7. QUALITY CONTROL AND CODE OF CONDUCT

    7.1 Supplier will maintain an inspection and quality system acceptable to Buyer and in reliance upon such system, Buyer may reduce its incoming inspection procedures. Supplier agrees to maintain authenticated inspection and test results for a period of ten (10) years after the expiration of the Contract. Upon request, Supplier shall identify in writing the country of origin of the Goods.
    7.2 Subject to Buyer’s reasonable prior request, Supplier shall permit Buyer to enter Supplier’s and its sub-suppliers’ premises to ensure compliance with the Contract.
    7.3 The delivery shall include all necessary instructions for the use. Supplier warrants that the Goods are manufactured, packed and sold in accordance with applicable laws and administrative regulations. Supplier acknowledges that the Buyer does not permit or condone the violation of any applicable domestic, foreign or international laws, rules or regulations; including, without limitation, any such laws, rules or regulations governing employment, labour and the environment. Supplier represents and warrants that it is not engaged in, and will not engage in, any unfair labour, wage or benefits practises that violate the laws or regulations of the country of manufacture or assembly of Goods or that involve unsafe and/or unhealthy labour conditions, the employment of child, uncompensated labour, discrimination based on race, gender, nationality, religion or other similar employment conditions. Furthermore, Supplier represents and warrants that it will follow the highest ethical standards and integrity whilst conducting business with the Buyer and is in compliance with, and will continue to comply with, all applicable laws, rules, regulations and standards, including, but not limited to, those pertaining to health and environmental matters and in particular the European Union regulation Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), in the conduct of its business and the manufacture and assembly of Goods. Supplier will familiarize and strictly follow Difrax Supplier Policy and Code of Conduct which is available on request.
    7.4 Social Conduct. Supplier is aware and declares that the individual human rights and dignity must be respected and protected. Humane living conditions must be provided for every person. This has been formulated by international conventions such as ILO no 182, International Labour Organization, and has been worked out by organizations like ICTI and BSCI. Supplier declares it complies to the regulations of BSCI and will protect the human rights of its workers accordingly. Supplier will give Buyer copy of the contract signed by BSCI . In case Supplier violates common accepted labour laws on child labour, voluntary employment, culture of respect, working conditions, safety and health or building permission, Buyer will terminate the relationship and Contract with Supplier immediately without any condition, and move away all tooling and production immediately. The Buyer has the right to a compensation of the resulting damage.
    7.5 The Buyer makes inspection and testing in time after receiving the Goods at Buyer’s cost. Buyer shall be allowed a reasonable period of time to inspect the Goods before acceptance, which period shall not be more than fourteen (14) working days after receipt of Goods by the Buyer. The Goods are deemed as acceptance by the Buyer if Buyer does not make any inspection or testing report to the Supplier. Both Supplier and Buyer know that 100% of the received Goods cannot be tested on chemical, physical and mechanical content. Supplier agrees and confirms that it did use the materials prescribed in the Product Specification Document (PSD), and/or Bill of Materials (BOM)- released by Buyer for each Good. Supplier declares it did and will follow legal requirements by EU and USA on forbidden materials and Toxic Elements.
    7.6 In case a Good fails on a chemical test at any time of the lifecycle of a Good, Supplier will take its responsibility and act on the instruction of Buyer to solve it in such a way which is in the best interest of the customers and according to the instructions of legal authorities. Supplier is liable and responsible for (financial) consequences, including but not exclusively for the cost of a recall because of such a misuse of materials, or pollution in machinery of (subcontractors of) Supplier. In that case Buyer has the right to turn down the entire shipment of the failing Goods. Supplier will fully compensate Buyer in this situation.
    7.7 Supplier is aware of the countries Difrax is currently selling its Goods to: all European countries, United States of America, Australia, Malaysia, China and other countries. The valid legal requirements for these countries must be followed and are, such as (but not limited to):
    - All raw materials must conform to EU and US FDA food contact requirements;
    - All raw materials and products must be BPA and Phthalate free and produced/assembled in BPA free working space;
    - EN 14350 for drinking equipment;
    - EN 1400 for soothers;
    - EN 12586 for soother cords;
    - EN 71 for teethers.
    Supplier declares that the Goods do comply with the current legal requirements of the countries mentioned.
    7.8 In case Buyer is planning to sell to other countries it will notify Supplier about this up front. In such a situation Buyer and Supplier will evaluate together if current Goods will pass the legal requirements for other countries and about changes needed to start up selling to other countries.

    8. CONTRACTING OUT

    8.1 Without the prior written approval of Buyer, the Supplier may not assign or subcontract the execution of the Contract in whole or in part to any third party, or make use of personnel of third parties.
    8.2 Approval by Buyer as referred to above shall not release the Supplier from any obligation under the Contract.

    9. RISK AND PROPERTY

    9.1 Title and risk to the Goods shall pass to Buyer upon the delivery. In case of rejection, title and risk of the Goods concerned shall remain with the Supplier from the date the notification of rejection is sent to the Supplier.
    9.2 In the event Buyer makes payment(s) prior to delivery, the title to the Goods shall pass at the moment of the payment, in proportion of the amount paid. In any event, no retention of title or other security is applicable to the Goods.

    10. PAYMENT

    Unless otherwise agreed in writing, the payment term is ninety (90) days from the latter of (a) delivery in full of the Goods in conformity with the Contract, or (b) receipt of the accepted invoice by the Buyer. Unless otherwise agreed, the invoice shall become payable only after the whole delivery has taken place. If the Supplier does not or not completely fulfil one or more of its obligations under the Contract or these Conditions, Buyer is entitled to suspend payment until Supplier has provided full remedy or the matter is otherwise finally settled. Payment of the Goods shall not mean acceptance of the Goods and does not release the Supplier from its obligations under the Contract or these Conditions. Buyer may offset from the relevant invoice any amounts owed by the Supplier. In case of late payment by Difrax, Supplier must send Difrax a written notice of default before failure occurs. In the event Buyer is liable to pay interest due to untimely performance of the payment obligations, this shall be equal to the refinancing interest rate of the European Central Bank (ECB).

    11. MANUFACTURING MATERIALS AND TOOLS

    In the event Buyer provides Supplier with any tools, materials, drawings, specifications and other equipment or data ("Materials") to be used by Supplier solely for the completion of the Contract, such Materials shall always remain Buyer’s property and shall be returned at Buyer’s request in good condition, normal wear and tear accepted. Materials shall be at Supplier’s risk and insured by Supplier at its own expense against the risk of loss, theft or damage, until returned to Buyer. Supplier shall ensure that the Materials are fit for the intended purpose. The Buyer directs the use, handling or destruction of surplus and scrap Materials.

    12. INSURANCE

    Supplier shall at its expense maintain adequate insurance for any of his liabilities pursuant to the legal relationship with Buyer or pursuant to the law. The Supplier has a duty to maintain a product liability insurance policy at his own expense. At the first request Buyer will be entitled to examine the insurance policies taken out to this end.

    13. CONFIDENTIALITY

    Supplier undertakes to keep secret all confidential information, business secrets and know how disclosed by Buyer as well as price paid by the Buyer for the Goods and not to use the same for any other purpose than for the completion of the Contract. This undertaking survives the termination of the Contract.

    14. MOULD TOOLING

    14.1 Parties agree, notwithstanding any contrary laws and regulations in the country where the Supplier is established, that all rights and interests including intellectual property rights of and in the mould tooling, technical drawings, product ideas etc. (for the production) of the Goods belong to the Buyer. All mould tooling are and remain owned at all times by the Buyer and will only be used for official purchase orders of the Buyer and subsidiaries of the Buyer (including Difrax Holding, Difrax Europe, Difrax USA or Difrax Overseas). Any violation on the foregoing will give the Buyer the right to move the tooling and production to another location immediately, without any condition. The Buyer has the right to a compensation of the resulting damage.
    14.2 The Buyer may from time to time place complete new tooling, new moulds or similar new items (the “Tooling”) at Supplier’s facility or Supplier’s selected factory for the purpose of producing Goods for the Buyer. Supplier may, after notifying Buyer in writing at least 30 days in advance, ask for the payment of US$50 per month for storing the Tooling in the premise of Supplier dated from the 13th month after Buyer fails to place purchase order to the Supplier to use them. If Buyer does not pay such payment for 5 years, the ownership of the Tooling will be completely changed to the Supplier automatically and the Supplier can use them for any purpose at Supplier’s sole discretion.
    14.3 Under any circumstances or for any reasons, if Buyer wants to take back the Tooling, the precondition for returning the mould(s) to Buyer is that Buyer has paid Supplier all the tooling cost, maintenance fee and any other debts which Buyer owned to Supplier on the Tooling. Supplier is aware that Buyer is and will remain the owner of the moulds used to make the Goods and will be fully cooperative in case Buyer is willing to move its own moulds. The Supplier shall ensure that Tooling is marked in such a way that Buyer will be able to exercise its proprietary rights at all times.
    14.4 Buyer agrees to pay Supplier certain Tooling maintenance fee (actual amount to be advised per each case), after the Tooling is used to manufacture reasonable large quantity of Goods or the mould tooling’s are over 12 months old. The maintenance fee should be paid within 30 (thirty) days after receipt of the invoice by Buyer. Supplier is obliged to send at least 20 samples of good Goods for approval by Buyer after maintenance or repair of the mould. The repair or maintenance of the mould is finished at the moment Buyer approves the samples out of this repaired mould.
    14.5 In case Buyer wants to keep the production, Buyer agrees to purchase another new Tooling at Buyer’s expense and replace the old one for the product manufacturing once the 12 months warranty period is expired or the Tooling cannot be repaired.
    14.6 As long as the Supplier has such Tooling in his possession the Supplier shall be responsible for the risk of damage to and/or loss of such Tooling. For the period the Supplier keeps the Tooling the Supplier will properly insure the Tooling against theft, loss and damage.

    15. INTELLECTUAL PROPERTY RIGHTS

    15.1 All models, designs, drawings, ideas, inventions, improvements, slogans, texts and descriptions provided by the Buyer or made by the Supplier on the instructions of the Buyer and the intellectual property rights relating to that, belong only to the Buyer who shall also be regarded as maker and designer, all irrespective of whether all this is charged to the Buyer separately.
    15.2 The Supplier is entitled to use the information provided by the Buyer, but only in connection with the execution of the Contract.

    16. TERMINATION

    16.1 In the event of the Supplier's failure to perform his obligations under the agreement and in the event of a bankruptcy or moratorium or winding-up or discontinuation of the Supplier's business operations, Buyer will be entitled to dissolve the Contract in full or in part without any further notice of default being required and without being obliged to pay any compensation and notwithstanding any other rights Buyer might have. Notwithstanding the provisions set out in the previous paragraph, Buyer will at any time be entitled to terminate the Contract in whole or in part. In such a case Buyer will only reimburse the Supplier for the direct costs incurred prior to the termination. If at the moment of termination of the Contract the production costs of any mold tooling in which the Supplier has invested, have not been fully paid back by the Buyer or if the mold tooling have not been fully used for the total agreed shots, Buyer will pay the Supplier the remaining amount.
    16.2 If in the opinion of Buyer there are fundamental reasons to fear that the Supplier will not properly or will not in a timely manner fulfil his obligations towards Buyer, the Supplier will be obliged at the first request of Buyer to furnish immediately sufficient security in the form required by Buyer for the full fulfilment of all his obligations.
    16.3 Any claims that Buyer might have or acquire on the Supplier in these cases, will be immediately and fully due and payable.
    16.4 Any and all (extra-)judicial costs incurred by Buyer as a result of the non-fulfilment by the Supplier will be borne by the Supplier.

    17 FORCE MAJEURE

    17.1 In the event of temporary force majeure, the Supplier can suspend the fulfilment of his obligations under the Contract for a reasonable period which may extend to not more than 2 weeks on the condition that the Supplier informs Buyer of this immediately after the force majeure circumstance has occurred stating the cause of the force majeure. If after these 2 weeks have expired the Supplier is not able to fulfil his obligations, Buyer will be entitled to dissolve the Contract without being obliged to pay any compensation and costs. In the event of permanent force majeure of the Supplier he will be obliged to inform Buyer of this immediately and Buyer will be entitled to dissolve the Contract immediately without being obliged to pay any compensation and costs.
    17.2 The following will without any limitation be in any event at the expense of the Supplier: work strike, worker lockout, shortage of manpower, illness, lack of raw materials, transport problems, breach of the obligations by suppliers and disruption in the Supplier's production.

    18. GOVERNING LAW AND DISPUTES
    18.1 These Conditions and all legal relationships between Buyer and the Supplier are exclusively governed by and construed in accordance with the laws of the Netherlands with exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
    18.2 Any dispute, controversy or claim arising out of or relating to these general terms and conditions and these Conditions, or the breach, termination or validity thereof, shall be finally settled by means of arbitration of the International Chamber of Commerce under the Rules of Conciliation and Arbitration of the International Chamber of Commerce. The number of arbitrators shall be one (1). The seat of arbitration shall be Utrecht, the Netherlands. The language of the arbitration shall be English.
    18.3 Without prejudice to Section 18.2 above, the Buyer reserves the right, at its sole discretion, to sue the Supplier at the competent court of the place where Buyer has its registered offices.
     

    June 2017