1. In these General Terms and Conditions, the capitalized terms shall have the following meaning, unless otherwise expressly agreed:
(а) “Agreement” means: (i) any Order by the Buyer accepted by the Supplier under these General Terms and Conditions, together with any related documents which are part of the Order or which are agreed separately between the Parties in writing and which form and govern the contractual relationship between the Parties, including but not limited to these General Terms and Conditions, any specifications, drawings, sketches, outlines, diagrams, requirements of the Buyer for quality and origin, etc., as well as (ii) any written agreement between the Buyer and the Supplier, and any additional agreements, annexes, schedules, these General Terms and Conditions, specifications, drawings, sketches, outlines, diagrams, requirements of the Buyer for quality and origin and any other documents that form an integral part thereof.
(b) “Supplier” means a Bulgarian or foreign natural or legal person, as well as its branch, trade representative office, place of business and others that sell and/or supply goods and/or provide services to the Buyer.
(c) “Buyer” means “FRONERI BULGARIA” EOOD, with Unified Identification Number 204185210, having its seat and registered address in the city of Sofia 1220, Vrubnitsa region, 261 Lomsko Shosse Blvd.
(d) “Personal Data” means any information relating to a natural person who is identified or can be identified, directly or indirectly, by reference to an identification number or one or more specific identifiers.
(e) “Buyer’s Materials” means any and all materials, tools, dies, plans, models, drawings, data, manufacturing facilities and any other equipment or materials provided by the Buyer to the Supplier or to its subcontractors in connection with the performance of an Order/Agreement.
(f) “Force Majeure” means an unforeseen and/or unavoidable event of an extraordinary nature (including, but not limited to a natural disaster (such as fire, flood, earthquake, hurricane, etc.), war, terrorist acts, blockade, embargo, strike, interruption or damage to the electrical or telephone network), which has arisen after the conclusion of the Agreement, certified by a force majeure certificate issued by the Bulgarian Chamber of Commerce and Industry
(g) “General Terms and Conditions” means these General Terms and Conditions of Purchase of the Buyer.
(h) “Confidential Information” means any information that is not publicly available and which in any way relates to the Buyer's business activity, whether in paper or in electronic form and regardless of whether it is classified as confidential, including but not limited to: (i) any technical and non-technical information, trade secrets and intellectual or industrial property rights of the Buyer or any entity related to the Buyer, (ii) any and all notes, analyses, studies, forecasts, summaries or other documents, and (iii) any information, revealed by the Buyer to the Supplier in connection with the conclusion or performance of the Agreement, or otherwise under the Agreement, including, but not limited to technical, technological, commercial and organizational information of the Buyer, as well as information received from the Supplier in the course of performance of the Agreement and relating to the Buyer or its business activity.
(i) “Order” means a written document or communication originating from the Buyer and addressed to the Supplier for purchase and delivery of goods or provision of a service, in which the respective Product(s) is/are individualized by type, quantity and quality.
(j) “Product” means: (i) goods that the Supplier has undertaken to manufacture, or ensure, and to sell and, where applicable, deliver to the Buyer and/or (ii) a service which the Supplier has undertaken to provide to the Buyer under any Agreement.
(k) “Business Day” means every day on which the Bulgarian banks are open and operating.
(l) “Inspection Period” means a reasonable time after delivery of a Product, which is determined by the normally necessary time for inspection and verification of its suitability for use/operation.
(m) “Party” means the Supplier or the Buyer, collectively referred to as “Parties”.
2. Each Order represents an offer by the Buyer for purchase and, if applicable, delivery of goods or provision of services by the Supplier. Until acceptance of the Order by the Supplier pursuant to these General Terms and Conditions, the Buyer may withdraw it at any time without any liability with respect to the Supplier. By accepting the Order by the Supplier pursuant to these General Terms and Conditions, the Parties conclude an Agreement in accordance with these General Terms and Conditions.
3. It shall be considered that the Supplier has accepted the Order if: (i) a written confirmation is sent to the Buyer; or (ii) delivers any Product contained in the Order.
4. These General Terms and Conditions shall apply to any offer for sale and supply of Products to the Buyer, whether or not made by the Buyer or the Supplier, publicly or not, as well as to any Agreements for sale and, if applicable, delivery of goods and/or provision of services, concluded between the Supplier and the Buyer and they shall apply instead of the general terms and conditions of the Supplier, where such are available.
5. The Supplier agrees that the Agreement and these General Terms and Conditions contain all arrangements related to the purchase and delivery of the Products and, in essence, constitute the entire agreement between the Parties and revoke and replace any and all prior or interim agreements and arrangements between the Parties, whether in written or verbal form, relating to the purchase and delivery of the Products.
6. If there is a conflict or inconsistency between these General Terms and Conditions and the Agreement, the terms of the Agreement shall prevail over these General Terms and Conditions. Other general terms and conditions of either Party, previous proposals, offers, estimates and other communication exchanged between the Parties or prior factual relations between the Parties or commercial practices do not form part of the Agreement.
7. The Supplier undertakes to promptly review the Buyer's requirements with respect to the Products and to promptly notify the Buyer in writing about any issues with the due performance of the Agreement.
8. The price and the terms of payment are set out in the Agreement. Unless otherwise expressly agreed in writing between the Parties, the price includes any applicable taxes and fees and any expenses incurred by the Supplier for the sale and delivery of the relevant goods or provision of the relevant service (including, but not limited to materials, work and packaging) and the Supplier shall not be entitled to charge any additional taxes, fees and expenses (including, but not limited to expenses for pallets, containers, warehousing, transportation, loading and unloading, insurance, service charges, etc.).
9. Without an express written arrangement to this effect, the Buyer shall not pay to the Supplier shipping or logistics costs and such costs shall be borne by the Supplier.
10. If the Supplier has undertaken to perform assembly or installation, all applicable additional costs for such assembly or installation shall be at its own expense, unless otherwise expressly agreed in writing between the Parties.
11. Unless otherwise expressly agreed in writing by the Parties, or provided for in mandatory statutory rules, the Buyer shall be obliged to pay the amount for each invoice issued by the Supplier within 90 (ninety) calendar days after the Buyer has received the Product and the relevant invoice as well as other required accounting and/or shipping documents (if required) in connection with the performance of the Agreement. Payment for transport services, where the Parties have explicitly agreed in writing that the transport services shall be at the expense of the Buyer, shall be made after presentation of duly completed bill of lading, delivery and acceptance protocol and an invoice. Unless otherwise expressly agreed in writing between the Parties, all amounts due under the Agreement shall be paid in BGN.
12. The Buyer is entitled at any time to set-off any amount due and payable by the Supplier to the Buyer against any outstanding amount due by the Buyer to the Supplier at the relevant time.
13. The Products shall be delivered to the place and within the time period specified in the Agreement or additionally specified in writing by the Buyer. The delivery period is essential for the Buyer. The relevant point of time for determining whether the delivery period has been met is the time of receipt by the Buyer of the Products, including all accompanying documents, at the agreed place for delivery. The receipt of the Products shall be certified by signing of a bilateral delivery and acceptance protocol by representatives of both Parties.
14. In order to comply with the agreed delivery period, the Supplier undertakes to keep the Products ready for timely forwarding, taking into account the usual time required for loading and dispatch. To the extent applicable to the relevant case, the Supplier shall coordinate its actions with the carrier designated by the Buyer.
15. If the Supplier foresees difficulties that may prevent him from making a delivery on time or as agreed, it shall notify the Buyer in writing immediately and perform actions with the care of a good merchant in order to minimize the delay.
16. The Supplier shall ensure that the packaging and labels comply with the requirements applicable to the type of transport concerned, as well as with any special requirements regarding packaging, labelling, storage, temperature and/or the necessary precautions, additionally specified by the Buyer. The cost of packaging and labelling shall be borne by the Supplier. The Supplier undertakes to comply with all applicable regulatory requirements regarding the packaging, labelling and transport of the Products in the countries where they are manufactured, transported and for which they are targeted.
17. In case of delay in delivery, as well as in case the Products are not delivered according to the agreed quantity and/or are not accompanied by the necessary documents, the Buyer has the right to return to the Supplier all or part of the delayed Products, as the risk from loss and damage, and all costs of storage, shipment and return of the Products are borne by the Supplier, and at its sole discretion: (i) to purchase additional or replacement Products from another Supplier and to claim payment by the Supplier for any additional costs incurred by the Buyer in this regard (including the cost of purchased additional or replacement Products); or (ii) request that additional or replacement Products be provided by the Supplier without payment of an additional cost, in which case the Supplier is required to use the shortest delivery route (where applicable) and any related costs are at its own expense. Without limiting the Buyer's rights under the preceding sentence, in the event of a delay of the Supplier with more than 10 (ten) calendar days, the Supplier shall owe the Buyer a penalty in the amount of 10 % of the value of the delayed Products.
18. All delivered Products shall comply with the quality requirements and standards specified in the Agreement and other conditions specified by the Buyer. Partial or full payment of the price under the Agreement prior to the expiry of the Inspection Period shall not constitute acceptance of the Products concerned, and payment after the Inspection Period cannot be considered a waiver by the Buyer of its rights against the Supplier in connection with the latter's liability for defects and lack of conformity.
19. The risk of loss or damage of the Products shall pass to the Buyer upon signing the delivery and acceptance protocol referred to in item 13 above, or, if such is not signed, upon receipt of the Products by the Buyer or its authorized representative, at the place at which Products shall be delivered in accordance with the Agreement. If the Supplier has undertaken to assemble, install and/or put into operation Products (where applicable), the Supplier carries the risk until acceptance of the work by the Buyer or its authorized representative. Where the subject of the Agreement is provision of transportation services, the Supplier shall bear full liability for dissipation, damage and/or loss of the transported goods from the moment of loading until the moment of their delivery to the Buyer and shall pay compensation in the amount of the damage caused to the Buyer.
20. The ownership of the Products shall pass from the Supplier to the Buyer upon signing the delivery and acceptance protocol referred to in item 13 above, or, if such is not signed, upon receipt of the Products by the Buyer or its authorized representative, at the place, at which Products shall be delivered in accordance with the Agreement.
21. All Buyer’s Materials remain property of the Buyer and may only be used by the Supplier for the purposes of the specific Agreement in connection with which they are provided. The Supplier is obliged to clearly mark the Buyer’s Materials as property of the Buyer and to keep them separate from its own property. The Supplier is not entitled to move and/or transfer the possession on these Materials to third parties without first obtaining the express written consent of the Buyer to this effect. The Supplier undertakes to use the Materials solely for the purpose of performing the Agreement.
22. Upon termination of the Agreement due to its performance or expiration or on any other grounds, and at any other moment at the request of the Buyer, the Supplier is obliged to return immediately the provided Materials to the Buyer in the state in which they were at the time of receipt, taking into account the normal wear and tear of the Materials. Any expenses for returning the Materials shall be at the expense of the Supplier.
23. To the extent applicable, the Supplier shall guarantee the quality of the Products for a period of 2 (two) years from the date of receipt of the Products by the Buyer, as certified by the bilateral delivery and acceptance protocol signed by the Parties pursuant to item 13 above, unless otherwise expressly agreed between the Parties in writing, or a longer warranty period is provided for by applicable law.
24. The Buyer is entitled at any time within the warranty period to notify the Supplier of any defects or non-conformities. In such case, the Supplier shall, at the discretion of the Buyer, immediately and at its own expense: (i) replace the defective Product with another one that has no defects; (ii) repair the defective Product (if the defect is subject to repair); (iii) reimburse the Buyer for the defective Product price, together with the sale expenses, and in exchange the Buyer shall return the defective Product. Alternatively, the Buyer may keep the defective Product and request a price reduction. In all cases under this item 24, the Buyer may also claim damages in accordance with the general statutory rules for liability for non-performance.
25. In cases where the provision of a guarantee is not applicable but the Supplier is liable for defects under the applicable law, the Buyer may, at its discretion and at the expense of the Supplier: (i) return the defective Product and claim the price back, together with the sale expenses, (ii) keep the defective Product and request a reduction in the price, (iii) request the Supplier to repair the defects at its own expense or repair the defects at the expense of the Supplier, or (iv) in case of sale of generic Products, to request Products without defects to be delivered. In all cases under the preceding sentence, the Buyer may also claim damages in accordance with the general statutory rules for liability for non-performance.
26. The abovementioned remedies of the Buyer shall not affect the right of the Buyer to claim compensation for all damages resulting from the delivery of defective Products, including but not limited to transportation, labour, materials and/or expenses for quality checks that exceed the cost of performing a routine inspection, as well as any amounts due by the Buyer to its customers.
27. In case as a result of or in connection with the performance of the Agreement by the Supplier, any object of intellectual property rights is created, in finished or unfinished form, such as sketches, drawings, designs, graphics, documentation, audio-visual works, etc., including if the Product or part thereof represents such an object (collectively, the "Objects" and separately the "Object"), the Parties agree that the respective Objects shall be deemed created upon assignment by the Buyer, and the Supplier is obliged to notify immediately in writing the Buyer for the creation of the Object and to provide it. The Parties agree, and the Supplier undertakes to ensure that all intellectual property rights, including all pecuniary and non-pecuniary copyrights and related rights as well as rights to apply for, register and use trademarks, designs, patents, utility models, etc. with respect to such Objects, arise directly for, and shall be the exclusive property solely of, the Buyer, without the Buyer owing any additional compensation, payment or indemnity to the Supplier or any third parties, and the Parties expressly agree that due compensation for these rights is included in the price of the Product that is related to the Objects. In the event that occurrence of these rights for the Buyer under the preceding sentence is not possible according to the applicable law, the Supplier grants to the Buyer an indefinite, exclusive and irrevocable right to use the respective Objects worldwide in any way and for any purpose, including for the purposes of the business of the Buyer and its related parties, without the Buyer owing any additional compensation, payment or indemnity to the Supplier or to any third parties, and the Parties expressly agree that due compensation for these rights is included in the price of the Product that is related to the Objects. In the event that the applicable law does not permit the granting of an indefinite right of use under the preceding sentence, the Parties agree that the right of use shall be granted for the maximum permissible period under the applicable law and shall, upon expiry, be renewed automatically for successive periods of the same duration, except if either of the Parties expressly opposes in writing to such continuation, and in any case the Buyer has the right to use the respective Object until placing on the market and sale out of all delivered units from the Product, related to the relevant Object. Insofar as intellectual property rights of third parties are incorporated into, or used for the creation of the Products, the Supplier undertakes to obtain the necessary licenses and permissions from such third parties to guarantee the undisturbed use of the Products by the Buyer, and hereby provides them to the Buyer as agreed in the preceding sentences. The Supplier shall ensure the effectiveness of the provisions of this Art. 27 to the fullest extent possible, as it shall include the necessary provisions in the written agreements with the respective individuals - creators who are involved in the creation of the Objects.
28. In the event that a Product or part of it is protected by any intellectual property rights of the Supplier or of third parties, which were not created upon assignment by the Buyer pursuant to item 27 above, by delivering the relevant Product, the Supplier grants to the Buyer an indefinite and irrevocable right to use this Product worldwide in any way and for any purpose, including for the purposes of the business activities of the Buyer and its related parties, without the Buyer owing any additional compensation, payment or indemnity to the Supplier or to any third parties, and the Parties expressly agree that due compensation for these rights is included in the price of the Product related to the Objects. In the event that the applicable law does not permit the granting of an indefinite right of use under the preceding sentence, the Parties agree that the right of use shall be granted for the maximum permissible period under the applicable law and shall, upon expiry, be renewed automatically for successive periods of the same duration, unless either of the Parties expressly opposes in writing to such continuation, and in each case the Buyer has the right to use the Product concerned until placing on the market and sale off of all delivered Product units.
29. All Buyer's trademarks remain exclusive property of the Buyer. In case that upon execution of the Agreement, the Supplier places the Buyer's trademark on any Product and supplies the Product with the trademark so affixed, the Supplier is required to place the trademark in accordance with all Buyer's requirements and instructions. The Supplier undertakes not to use the Buyer's trademarks in any other way and for any purpose other than to place them on the relevant Products in the course of performance of the Agreement and shall not sell such branded Products to any third party.
30. The Supplier undertakes to comply with all applicable provisions of the relevant data protection laws.
31. The Buyer and the Supplier acknowledge and agree that in the course of the performance of the Agreement they may process Personal Data (including names, telephone numbers and contact addresses, capacity or position of representatives, proxies, employees, officials, or contact persons of the Parties), and, unless the Agreement and the purposes of the processing of Personal Data necessitate otherwise, the Parties act as independent controllers of Personal Data, each of them individually defining the purposes and means for processing them.
32. In the event that the Parties will process Personal Data as joint controllers or one of the Parties will have the capacity of independent controller of Personal Data and the other Party will have the capacity of a Personal Data processor, the Parties undertake to enter into appropriate agreements within the meaning of Art. 26 and/or Art. 28, para. 3 of the General Data Protection Regulation (Regulation (EU) 2016/679).
33. The Agreement may be terminated at any time by mutual agreement of the Parties in writing.
34. The Buyer has the right to unilaterally terminate the Agreement entirely or partially at any time by sending a prior written notice of 14 (fourteen) calendar days to the Supplier without the need to state any reason for termination. Upon unilateral termination of the Agreement by the Buyer according to the previous sentence, the Supplier undertakes, upon receipt of the termination notice, to cease immediately all work under the Agreement, as well as to terminate in its turn all orders and agreements with third parties related to the fulfilment of its obligations under the Agreement. In the event of termination of the Agreement under this item 34, the Buyer owes to the Supplier only the reasonable expenses incurred by the latter with respect to the fulfilment of its obligations under the Agreement, which as a result of the early termination of the Agreement cannot be reimbursed or limited, such as expenses related to purchased materials or labour expenses, provided that these expenses are incurred by the Supplier prior to receiving the notice of termination of the Agreement and do not exceed the agreed price of the Products. The Supplier undertakes to notify the Buyer in writing immediately and no later than 5 (five) calendar days after receipt of the termination notice, about the amount of the expenses incurred by it in accordance with the previous sentence. Beyond the costs indicated above, the Buyer shall not owe the Supplier any other compensation upon termination of the Agreement under the terms of this item 34.
35. The Buyer is entitled at any time to terminate the Agreement unilaterally by giving written notice to the Supplier with immediate effect, without owing any compensation to the Supplier in this regard, if:
(а) with respect to the Supplier, insolvency proceedings are initiated or an application for the opening of such proceedings is filed, or with respect to the Supplier liquidation proceedings are opened;
(b) a change in the control and/or management of the Supplier occurs, which, at the Buyer's discretion, could adversely affect the Supplier's ability to fulfil its obligations under the Agreement, or
(c) in the event of a material breach of the Agreement by the Supplier. For the avoidance of any doubt, a material breach shall be present when, among other things: (i) the Supplier fails to deliver the Products within 1 (one) month after the agreed delivery term; (ii) the Supplier has not repaired a defect in the delivered Products within the reasonable time specified by the Buyer; (iii) upon the Supplier's failure to comply with the confidentiality obligations set out in item 37 below; (iv) upon the Supplier’s failure to comply with the obligations to protect the Buyer's good name and reputation under item 36 below or the obligations to comply with applicable regulatory requirements and standards under item 38 below.
36. In the course of performance of the Agreement, the Supplier undertakes to protect the Buyer's good name and reputation with due diligence, and to refrain from any action that may damage or offend the Supplier in front of third parties or its employees.
37. For the term of the Agreement and after its termination, the Supplier undertakes not to disclose to third parties and not to make copies, multiply or otherwise reproduce Confidential Information, as well as not to use such information for different purposes of those related to the performance of the Agreement. The Supplier may disclose Confidential Information at the legitimate request of competent governmental authorities, in the scope specified in such request. In addition, the Supplier may grant access to Confidential Information to its employees or other persons whose access to Confidential Information is reasonably justified by their involvement in the performance of the Agreement. The Supplier undertakes to ensure that persons who have been granted access to Confidential Information under the preceding sentence comply with the confidentiality obligations under this item 37, and it is liable for any breach by such persons of such confidentiality obligations. In the event that the Supplier breaches the confidentiality obligations under this item 37, the Buyer is entitled to a fine of BGN 5,000 (five thousand leva) for each violation. Any indemnity claimed by the Buyer under this item 37 shall be paid within 7 (seven) calendar days from the date such claim is made in writing to the Supplier.
38. In fulfilling its obligations under the Agreement, the Supplier undertakes to comply with all relevant regulatory requirements and standards applicable at the relevant time in any and all countries where the Products are manufactured, supplied or used, or where other obligations under the Agreement shall be fulfilled or in any way related to the manufacturing, packaging, labelling, transportation, import, export or authorization of the manufacturing or marketing of the Products, including, without limitation, the anti-corruption provisions and legal rules prohibiting other similar practices, as well as those related to food safety, environmental protection, minimum age for employment, minimum wages, working hours and safety at work conditions, anti-discrimination, immigration, choice of subcontractors, rules relating to toxic substances, hazardous materials and electrical and electronic equipment.
39. Without prejudice to the effectiveness of the following sentence, neither of the Parties may transfer its rights and/or obligations (or any one of them) under the Agreement without the prior written consent of the other Party. Notwithstanding the preceding sentence, the Supplier agrees that the Buyer may freely transfer its rights and/or obligations (or any of them) under the Agreement to a related party, without the prior consent of the Supplier to that effect.
40. The Parties to the Agreement shall not be liable for failure to fulfil their obligations in the case of Force Majeure. The Party affected by the Force Majeure shall take all reasonable efforts and measures to minimize the damages and losses incurred and notify the other Party in writing within 3 (three) calendar days of the occurrence of the Force Majeure. In the event that Force Majeure lasts more than 30 (thirty) calendar days, either Party may unilaterally terminate the Agreement.
41. Notifications, notices and other communications under these General Terms and Conditions or under the Agreement shall be considered validly made if they are made in writing and addressed to the legal representatives of the Buyer or the Supplier and are delivered by hand or sent by registered mail with return receipt requested, by prepaid courier with return receipt requested, by fax or e-mail, to the registered address/ fax number/ email address specified by the relevant Party, or such other address, fax number or email address, as the relevant Party has notified to the other Party in accordance with the provisions of this item 41, provided that notices regarding non-performance and/or termination of the Agreement must be sent by registered mail with return receipt requested or by prepaid courier with return receipt requested. Any such communication shall be deemed to have been received by the addressee: (a) at the time of transmission, if delivered by hand; (b) on the next working day at the place to which it has been sent, if faxed (provided that the sender has retained the acknowledgment or receipt issued by the machine from which the fax was sent indicating that it was sent in its entirety to the fax number of the addressee); (c) upon receipt by the sender of the return receipt, if it has been sent by registered mail with return receipt requested or by a prepaid courier with return receipt requested; (d) if sent by e-mail, 2 hours after the time of dispatch, if sent before 3:00 pm (local time of destination) on any Business Day, and in all other cases at 10:00 am (local time of destination) on the Business Day following the date of dispatch. Each Party undertakes to notify the other Party in accordance with this item 41 about any change in the specified address, fax number or email address. In the event of default of this obligation, the other Party shall not be liable for inaccurately addressing the communication and any invoice, message or notification shall be considered as duly received by the defaulting Party at the old address, fax number or email address.
42. The Agreement and these General Terms and Conditions are subject to and shall be construed in accordance with the laws of the Republic of Bulgaria.
43. The declaration of any of the provisions of the Agreement or of these General Terms and Conditions as invalid or unenforceable shall in no way affect the validity or enforceability of the remaining provisions. The Parties shall replace the invalid or unenforceable provision with a provision which is as close as possible to the economic effect of the invalid or unenforceable provision.
44. All disputes arising out of or relating to the Agreement (including these General Terms and Conditions), including disputes arising out of or concerning its interpretation, invalidity, performance or termination, as well as disputes about filling gaps in the Agreement or adapting it to newly arisen circumstances shall be referred for resolution by the competent Bulgarian court in the city of Sofia.
45. The Supplier confirms that a copy of these General Terms and Conditions has been provided to it by the Buyer and that the Supplier accepts these General Terms and Conditions.
MILKA, OREO and TOBLERONE are trademarks of the Mondelez International Group, used under license
BOSS, NIRVANA, MAGNUM, FAMILIA, FAMILIA HIT, FAMILIA GALAXY, ALOMA, PIRULO and NESQUIK are trademarks of Société des Produits Nestlé S.A, Vevey, Switzerland, used under license