STANDARD TERMS & CONDITIONS OF SUPPLY

Vitafoam Magyarország Kft.
STANDARD TERMS & CONDITIONS OF SUPPLY

1. Definitions
The following words, phrases and abbreviations used in these standard terms and conditions (“these Conditions”) and the Order Confirmation shall have the following meanings:
“Confidential Information” means any and all information which is confidential in nature in whatever form whether disclosed orally or in writing and whether eye readable, machine readable or in any other form including, without limitation, know-how, algorithms, methodologies, specifications, technical literature, information of a commercial, financial, cost, pricing or marketing nature.
“Delivery Address” means the shipping address as given by the Buyer in the Order.
“Order” means a written order from the Buyer and received by Vitafoam setting out the offer of the Buyer for the purchase of the Goods or the Services.
“Order Confirmation” means the document titled as such which is sent by Vitafoam to the Buyer in response to the Order placed by the Buyer in which Vitafoam accepts the offer of the Buyer in its entirety.
“Price” means the ex works (as per Incoterms 2010) price of the Goods net of VAT and/or the charge for the Services as described in the Order.
“Goods” means any foam product Vitafoam is to supply to the Buyer in accordance with the Contract and these Conditions.
“Parties” means Vitafoam as seller and the Buyer.
“Services” means any service as described in the Order and accepted in the Order Confirmation.
“Vitafoam” means Vitafoam Magyarország Gyártó Kft. (7030 Paks, 8806/2 hrsz., EU tax no.: HU13124982)
“Writing” includes, facsimile transmission, email communication and comparable durable means of communication.
1.1. Any reference in these Conditions to a particular piece of legislation or a provision of a particular piece of legislation shall be construed as a reference to that particular piece of legislation as amended, re-enacted or extended at the relevant time and includes any subordinate legislation for the time being in force made under it.
1.2. The headings in these Conditions are for convenience only and shall not affect their interpretation.
1.3. A reference to person shall include bodies corporate and unincorporated entities.
1.4. Any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and the words following those terms shall not limit the sense of the words preceding those terms.
1.5. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms 2010 shall have the same meaning in these Conditions but if there is any conflict between the provisions of Incoterms 2010 and these Conditions, the latter shall prevail.

2. Order and Contract
2.1. Any Order issued by the Buyer is an offer to buy the Goods or the Services subject to these Conditions and shall be subject to acceptance by Vitafoam and a Contract will only be formed when Vitafoam has accepted the Buyer’s offer to buy in Writing (Order Confirmation).Unless the Parties agree otherwise the Order and the Order Confirmation shall form the Contract between the Parties and these Conditions hereunder shall be deemed to be incorporated in the Contract. Every placement of an Order by the Buyer constitutes unconditional submission to and acceptance of these Conditions by the Buyer. In case of discrepancy between the terms of the Contract and these Conditions, the terms of the Contract shall prevail. The Order will lapse unless unconditionally accepted by Vitafoam on these Conditions and in Writing within seven (7) days of the date of the Order. Any variation of an Order by the Buyer shall be deemed a new Order. The Order cannot be withdrawn (cancelled) or modified after the Order Confirmation has been received by the Buyer.
2.2. The quantity (which shall be subject to the current minimum order requirements for the particular Goods or Services), the quality and description of the Goods and/or the Services shall subject to these Conditions, be clearly specified in the Order. If any of this information is missing the order placed by the Buyer shall not be regarded as an Order for the purposes of these Conditions.
2.3. The Contract shall prevail over, supersede and exclude any inconsistent terms or conditions contained in or referred to in correspondence or any other communication between the Parties. No addition to or variation or exclusion of these Conditions shall be binding upon either party unless confirmed expressly and specifically by an authorized representative of Vitafoam in Writing. Vitafoam accepts that Orders will be sent to Vitafoam via fax or via email and email communication in general shall be accepted by the Parties as valid communication for the purpose of these Conditions and the Contract.
2.4. These Conditions apply to the exclusion of any other terms and conditions (i) which the Buyer might seek to impose, even though such other terms and conditions may be submitted in a later document or purport to exclude or supersede any Conditions inconsistent with them; or (ii) as may be contained in any other acceptance or counter-offer made by the Buyer.
2.5. Any advice or recommendation given by Vitafoam or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by Vitafoam is followed or acted upon entirely at the Buyer’s risk and accordingly Vitafoam shall not be liable for any such advice or recommendation which is not so confirmed.
2.6. Vitafoam reserves the right to make any changes in the specification of the Goods or Services as necessary to conform with any applicable statutory or EU requirements provided always that such changes do not materially affect the quality or performance of the Goods or Services.
2.7. No variation of these Conditions is valid unless expressly accepted by a duly authorized representative of Vitafoam in Writing.

3. Obligations of the Parties
3.1. The Buyer shall take all responsibility for the Delivery Address in relation to invoicing and VAT treatment of the sale. By designating a Delivery Address, the Buyer becomes liable towards Vitafoam for the fact that the Goods shall be delivered by the Buyer to the Delivery Address. Any damage, loss cost incurred by Vitafoam as a result of breach of this obligation by the Buyer, shall be fully compensated by the Buyer.
3.2. Goods supplied in accordance with the Contract may not be returned without the prior written permission of Vitafoam. Vitafoam shall be under no obligation under any circumstances to accept, take delivery of, or store such returned Goods. Duly authorized returns shall be sent to Vitafoam’s premises at the cost and risk of the Buyer. Title to returned Goods shall remain vested in the Buyer unless Vitafoam and the Buyer agree otherwise.

4. Delivery
4.1. Where the date of delivery of the Goods and/or performance of the Services is to be specified after the placing of the Order, the Buyer shall give Vitafoam reasonable notice of the specified date.
4.2. The time of delivery of the Goods or performance of the Services is not of the essence of the Contract. The Goods may be delivered or the Services may be performed by Vitafoam ahead of the agreed delivery date or performance date upon giving reasonable notice to the Buyer. The place of delivery or performance shall be the factory of Vitafoam unless agreed otherwise by the Parties.
4.3. Vitafoam reserves the right to make delivery by instalments and to tender a separate invoice for each instalment. In such case if there is a delay in the delivery of any one or more instalments for whatever reason this will not entitle the Buyer to reject delivery of the further instalments and repudiate the Contract or to claim damages from the Buyer.
4.4. Deviations in quantity of the Goods delivered not exceeding ten per cent of the quantity shown in the Order Confirmation shall not give the Buyer any right to reject the Goods or to claim damages on this ground. In such case the Buyer shall be obliged to take due delivery of the Goods and to pay for whatever quantity of the Goods is delivered.
4.5. The quantity of any consignment of Goods as recorded by Vitafoam upon dispatch shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence to the contrary.
4.6. Where delivery or performance is not accepted by the Buyer or is delayed or suspended at the request of the Buyer after Vitafoam has given notification to the Buyer of its readiness to deliver, Vitafoam, at its discretion, shall be entitled to
(i)treat the Contract as fulfilled and place the Goods into storage. In such case delivery or performance shall be deemed to have taken place for the purpose of issuing the invoice, payment of the Price and passing of the risk. (The reasonable cost of the storage and the insurance premium payable in respect of the Goods shall be for the Buyer’s account);
or
(ii) sell the Goods at the best price readily obtainable and, after deducting all reasonable storage and selling expenses, account to the Buyer for the excess over the Price under the Contract or charge the Buyer for any shortfall below the Price under the Contract.
4.7. Any liability of Vitafoam for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for the Goods.
4.8. The Buyer shall not be obliged to return to Vitafoam any packaging or packaging materials for the Goods, whether or not any Goods are accepted by the Buyer. However, if the Goods are returned by the Buyer, the Buyer shall be liable for the proper packaging of the Goods (especially against water/moisture).
4.9. Any tools, artwork, cutting boards and the like made or purchased for the manufacture of the Goods shall remain the property of Vitafoam even if the Buyer has been charged for the cost of such item.

5. Complaints
5.1. Where delivery or performance is carried out on ex works basis the Buyer shall be responsible for arranging for quality and quantity inspection of the Goods at Vitafoam’s premises before dispatching the Goods. Vitafoam shall have no liability for any claim by the Buyer which is made after dispatch in respect of any defect in the Goods which would be apparent on inspection or in respect of any damage during transit.
5.2. Where delivery is not carried out on ex works basis the Buyer shall have the obligation to inspect the Goods promptly on taking delivery.
5.3. No liability will attach to Vitafoam for non-delivery, partial loss or damage to the Goods or for any claim that the Goods are not in accordance with the Contract unless such claims are notified in Writing by the Buyer to Vitafoam (and in case of claims for non-delivery, partial loss or damage with a copy to the carrier if Vitafoam’s transport has not been used to deliver the Goods):
(i) within ten days of delivery for partial loss or damage or non-compliance with the Contract; or
(ii) within seven days of the date of the invoice for non-delivery.
5.4. 2016In the event of a valid claim for non-delivery, partial loss or damage to the Goods Vitafoam undertakes at its option either to reprocess or replace the Goods at its expense but shall not be under any further liability to the Buyer or any other person in connection with such non-delivery, partial loss or damage or non-compliance.
5.5. If the Buyer shall fail to give notice in accordance with Clause 5.3 above the Goods shall be deemed to be in all respects in accordance with the Contract and the Buyer shall be bound to accept and pay for the same accordingly.

6. Price
Vitafoam reserves the right at any time prior to delivery or performance to adjust the price of the Goods or the Services by Written notice to the Buyer, to take account of any increase in the cost of raw materials, labour or services or any currency fluctuations affecting the cost of imported materials or any other price relevant increase in production or service costs which may not reasonably be controlled by Vitafoam.
Vitafoam Magyarország Kft.
STANDARD TERMS & CONDITIONS OF SUPPLY

7. Terms of Payment
7.1. Payment for the Goods or Services shall become due and payable on the day specified in the invoice issued following delivery or performance, if any, and if not so specified shall become due and payable on the twentieth day of the month following the month of delivery or performance.
7.2. Vitafoam has the right to send its invoices to the Buyer by scanned copies by email and the Buyer accepts such delivery of invoices.
7.3. The Buyer shall have no right to set-off any amount on any legal ground against an invoice from Vitafoam.
7.4. No payment by the Buyer shall be deemed to have been made until the date Vitafoam has received cleared funds of the invoiced amount on its bank account (or in the event of cash payment at the cashier, the date indicated on the payment slip).
7.5. The Buyer shall have no right to assign any of its rights or obligations under the Contract to any third party without the prior written approval of Vitafoam.
7.6. Vitafoam reserves the right at any time at its discretion to demand sufficient security for payment before continuing with any order or delivering the Goods or performing the Services (or part thereof).
7.7. If the Price shall be payable by instalments, or if the Buyer has agreed to take specified quantities of Goods at specified times, a default by the Buyer of payment for any due instalment or the failure of the Buyer to give delivery instructions in respect of any quantity of Goods outstanding, shall cause the total balance of the Price to become due and payable forthwith.
7.8. Vitafoam reserves the right to charge default interest in the event of late payment, at a rate equal to twice the rate of the annual base lending rate quoted by the Hungarian National Bank on the first day of the default (unless the rate is determined by law). Should the debt occur in a currency other than Hungarian Forint, default interest shall be paid by the Buyer at a rate equal to twice the rate of the base lending rate quoted by the central bank of the jurisdiction of the given currency on the first day of the default (unless the rate is determined by law). Default interest shall accrue on a day to day basis from the date following the due date for payment in the invoice until the obligation to make payment is fully discharged.

8. Risk and Title
8.1 Unless contained otherwise in the Contract, the risk of damage to or loss of the Goods shall pass to the Buyer upon delivery to the Buyer.
8.2 The ownership title over the Goods from Vitafoam to the Buyer shall not pass until the Buyer has paid the Price to Vitafoam. While the title is retained by Vitafoam, the Buyer shall have no right to further process the Goods and sell it to third parties. In case of breach of this obligation the Buyer shall indemnify Vitafoam against all its losses and costs incurred by it as a result of such breach.

9. Warranty
9.1 Vitafoam warrants to the Buyer that the Goods comply with all relevant and applicable EU standards and Hungarian statutory requirements and regulations relating to the sale and/or manufacture of the Goods.
9.2 Vitafoam warrants to the Buyer that the Services will be performed by qualified and trained personnel.
9.3 Vitafoam shall not be liable for any warranties other than those set out in Clauses 9.1 and 9.2 above.
9.4 Vitafoam shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Goods and/or Services, if the delay or failure was due to circumstances that were beyond Vitafoam’s reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond Vitafoam’s reasonable control:
(i) Act of God, explosion, flood, tempest, fire or accident;
(ii) war or threat of war, sabotage, insurrection, civil disturbance or requisition;
(iii) acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
(iv) import or export regulations or embargoes;
(v) strikes, lock-outs or other industrial actions or trade disputes;
(vi) difficulties in obtaining raw materials, labour, fuel, parts or machinery;
(vii) power failure or breakdown in machinery.
9.5 Use and processing of the Goods is the absolute responsibility of the Buyer and the Buyer shall be deemed to have carried out its own tests to ensure the suitability of the Goods for their intended purpose and applications.
9.6 Should the Buyer use the Goods in its own product (“Own Product”) either in their original condition or in any other further processed form, it shall make sure that the representations and instructions of use made by Vitafoam in relation to the Goods will be suitable for its own product and communicated to the purchaser of the Own Product on the label and/or on the packaging and/or in the instructions of use of the Own Product whichever is the best way of such communication. In case the Buyer fails to comply with this requirement Vitafoam shall have no liability whatsoever against the Buyer for any damage caused by the Own Product and the Buyer shall reimburse Vitafoam for all damages and compensation paid by Vitafoam to a third party in relation to a compensation claim raised by such third party against Vitafoam in connection with the Goods that formed part of the Own Product.

10. Confidential Information
10.1. Neither party will disclose to any third party any Confidential Information which is received from the other without the other party’s prior written consent.
10.2. Both parties agree to disclose the Confidential Information to employees and officers only on a “need to know” basis.
10.3. Notwithstanding this clause 10, either party will be entitled to disclose Confidential Information of the other to (i) its insurers or professional advisors; or (ii) any third party as a result of governmental or legal requirements, provided that where reasonably practicable not less than two (2) business days’ notice is first given to the other and all reasonable non-financial cooperation is given in order to allow the affected party to seek legal protection, if available, against such disclosure.

11. Stoppage
11.1 If:
(i) the Buyer fails to accept the Goods or Services or any instalment of them; or
(ii) the Buyer fails to pay any sum due to Vitafoam; or
(iii) the Buyer fails to observe or perform any of his/its obligations under the Contract or any other contract between the Company and the Buyer; or
(iv) any of the following events occur;
(a) the Buyer has a bankruptcy order made against him or insolvent liquidation of the Buyer has been declared; or
(b) the Buyer ceases, or threatens to cease, to trade; or
(c) the Buyer encumbers or in any way charges any of the unpaid Goods; or
(v) Vitafoam reasonably apprehends that any of the events set out in (iv) above is about to occur in relation to the Buyer and notifies the Buyer accordingly,
Vitafoam in its discretion and without prejudice to any other right or claim may by notice in Writing immediately terminate wholly or in part any and every Contract between Vitafoam and the Buyer or may (without prejudice to Vitafoam’s right subsequently to terminate the Contract for the same cause should it so decide) by notice in Writing immediately suspend further deliveries of Goods or performance of Services without any liability to the Buyer and if the Goods or Services have been delivered or performed but not paid for, The Price shall be come immediately due and payable notwithstanding any previous agreement or arrangement to the contract.

12. General Provisions
12.1 Nothing in these Conditions shall create any association, partnership, joint venture, employer-employee or agent-principal relationship between the parties.
12.2 The provisions of these Conditions and the Contract which expressly or by implication are intended to survive its termination or expiry will survive and continue to bind both parties.
12.3 Any waiver or failure to perform or breach of any provision of these Conditions shall not operate or be construed as a waiver of any other right under these Conditions or the Contract or of any other breach or failure whether of a similar nature or otherwise.
12.4 If any provision of these Conditions is held to be invalid, the remaining provisions shall remain in full force and effect.
12.5 These Conditions and the Contract and any matters arising from it shall be governed and construed in accordance with Hungarian law and shall be subject to the exclusive jurisdiction of the courts of Hungary.
12.6 These Conditions are drawn up in both the English and Hungarian languages. In case of any discrepancy between them the Hungarian version shall prevail.
12.7 The Parties expressly and irrevocably agree that they exclude the application of the Convention on Contracts for the International Sale of Goods (Vienna, 1980) to these Conditions and the Contract between them.