Purchasing T+Cs

Terms and Conditions of PURCHASE

ADM Group AS OF  SEPTEMBER 1, 2018

PART 1 – GENERAL TERMS AND CONDITIONS 

These General Terms and Conditions of Purchase apply to all contracts between one of the ADM group companies set out in 1.1 (each of them “ADM”) and a Seller (“Seller”) for the purchase of goods (“Goods”) or services (“Services”) by ADM pursuant to a purchase order issued by ADM to the Seller (“Order”). 

Section 1 – Application and Interpretation

1.1       ADM: Each company listed in the attached Schedule and such company’ subsidiaries. 

1.2       The Seller’s general terms and conditions are hereby expressly excluded. Provisions in the Seller’s confirmation or other writing of whatever kind inconsistent with or in addition to the terms of the Order and these Terms and Conditions of Purchase shall not be binding upon ADM unless expressly approved in writing by ADM making specific reference to the inconsistent or additional term or condition. Oral agreements shall not be binding unless they are confirmed in writing by ADM.

 1.3       In the event of a conflict between these conditions and any special terms and conditions referred to in the Order then the latter shall prevail. 

 1.4       A reference to a law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.

Section 2 – Quality of Goods

2.1       The Seller warrants that the Goods shall be of good merchantable quality and fit for their purpose, free from defects and/or damage and shall comply in all respects with the Order and any specifications supplied by ADM to the Seller.

2.2       The Seller warrants that the Goods and their packaging and labelling meet with all applicable statutory rules and regulations in the country of delivery and in as far as known to the Seller, the country of destination. The Seller shall provide evidence of compliance with such legal requirements promptly on request.  

2.3       The Seller shall comply with the ADM Supplier and Co-Manufacturer Food Safety and Quality Expectations in the provision of the Goods where applicable.

2.4       In addition to its other rights and remedies ADM reserves the right to cancel an Order in its entirety or in part if the Goods are defective or not in conformity with the specifications supplied by ADM to the Seller and/or the present general and special terms and conditions of purchase. The Goods are subject to ADM’s inspection and approval at destinations. If defective or non-conforming, the Goods may be rejected by returning them for credit or replacement at the Seller’s risk, and all handling and transportation expenses both ways shall be borne by the Seller.

2.5       The Seller warrants that the sale, re-sale and use of the Goods shall not infringe (directly or indirectly) any patent, trademark, copyright or other intellectual property and the Seller agrees to indemnify ADM to the extent of all damages assessed and all other expenses including reasonable legal fees incurred as a result of any infringement (direct or contributory).

2.6       All warranties survive delivery to and acceptance by ADM.

Section 3 – Standard of Services

3.1       The Seller warrants that any Services performed by the Seller or duly appointed sub-contractor shall be the best of their described kind and shall in all cases be in exact conformity with any contractual description or specification and performed with all due speed, care, skill and diligence.  The Seller shall ensure that all of its personnel and sub-contractors are suitably qualified to perform the Services and that all necessary licences, work permits and/or other authorisations have been obtained.

3.2       The Seller warrants that any Services performed by the Seller or duly appointed sub-contractor shall be carried out in accordance with the contract, all applicable statutory rules and regulations, current industry standard codes of practice and ADM’s IT security, premises and health and safety policies, rules and procedures as notified to the Seller from time to time. ADM shall provide the Seller with copies of its applicable policies, rules and procedures to enable the Seller to comply with its obligations under the contract.

3.3       Unless otherwise agreed in writing, the Seller shall provide at its own expense all staff, equipment, tools, appliances, materials or items required for the provision of the Services. The Seller shall ensure that all equipment used in connection with the contract is maintained in good working order in compliance with manufacturer’s instructions and current legislation.  

3.4       Without prejudice to any other right or remedy ADM shall have the right exercisable during the performance of the Services to suspend any payment obligation in respect of the Services if the performance does not conform in quality with any stipulations in the contract.

3.5       If the Services do not conform with the contract, ADM shall without prejudice to any other right or remedy, have the right to purchase Services from elsewhere which nearly as practicable conform to the contract and any extra expense incurred shall be paid by the Seller to ADM. Before exercising such right to purchase the Services from an alternative seller ADM shall give the Seller an opportunity to replace the Services in respect of which payment was cancelled with Services which conform with the contract.

Section 4 – Liability and Insurance

4.1       The Seller shall indemnify ADM against any liabilities, damages, claims, costs, losses and expenses incurred or paid by ADM arising from any defect or non-conformity in the Goods or Services or any breach by the Seller of its obligations under the contract or of any statutory duty or from any act or omission of the Seller’s employees, agents or sub-contractors.

4.2       The Seller shall insure with a reputable insurance company its liabilities under the contract for a minimum of € 5,000,000 per event and if so required at any time shall produce the policy of insurance and the receipt for the current premium to ADM for inspection. Any limitation, monetary or otherwise in such policy shall not be construed as a limitation on the Seller’s liability and the Seller shall, notwithstanding such limitation, remain liable in full for the matters and to the extent not covered by the policy.

4.3       ADM shall not be liable for any loss of profit, loss of goodwill, loss of reputation, loss of data, loss of anticipated saving or any indirect or consequential loss. Subject to the foregoing ADM’s maximum aggregate liability in relation to each Order shall be limited to the purchase price.  This provision is not intended to limit or exclude ADM’s liability for any matter for which liability cannot be limited or excluded at law.   

Section 5 – Delivery

5.1       The Goods, properly, packed, sealed and secured in such a manner as to reach their destination in good condition, shall be delivered, carriage paid, to ADM´s place of business or to such other place of delivery as is agreed by ADM in writing prior to delivery of the Goods.

5.2       The Seller shall deliver the Goods/perform the Services on the dates or within the periods specified in the Order. If no period is specified then the Seller shall deliver the Goods/perform the Services promptly.  Time shall be of the essence.

5.3       If the Goods are not delivered/the Services are not performed on the due date then, without prejudice to any other rights which it may have, ADM reserves the right to: (i) cancel the contract in whole or in part; (ii) refuse to accept any subsequent delivery of the Goods/performance of the Services which the Seller attempts to make; (iii) recover from the Seller any expenditure reasonably incurred by ADM in obtaining the Goods/Services in substitution from another Seller; (iv) recover the difference between the price fixed by the contract and the current price the first working day following the expiry of the delivery period or, if granted, the period of grace. The current price is the price prevailing at the place where delivery of the goods should have been made or, if there is no current price at that place, the price at such other place as serves as a reasonable substitute, making due allowance for differences in the cost of transporting the goods; and (v) claim damages for any additional costs, losses or expenses incurred by ADM which are in any way attributable to the Seller's failure to deliver the Goods/perform the Services on the due date.

5.4       If the Goods are delivered to ADM in excess of the quantities ordered ADM shall not be bound to pay for the excess and any excess shall be and shall remain at the Seller’s risk and shall be returnable at the Seller’s expense. 

5.5       With respect to the delivery of the Goods, the Seller is obliged to follow the applicable local ADM Safety Rules. The Seller shall ensure that the driver who delivers the Goods observes those Safety Rules. A copy will be sent to the Seller at first request.

Section 6 – Risk/Property

6.1       The Goods shall remain at the risk of the Seller until delivery to ADM is complete (including unloading) when ownership of the Goods shall pass to ADM.   

Section 7 – Price and Payment

7.1       The price of the Goods/Services shall be as stated in the Order and unless otherwise agreed in writing by ADM shall be exclusive of VAT but inclusive of all other charges. If applicable, VAT will be added according to local legislation. If no provision as to price is included in the Order the price shall be the last quoted price or the market price at the time of delivery, whichever is lower.

7.2       ADM reserves the right to make appropriate price adjustments, (where allowable according to specific country invoicing/VAT rules), to the price payable for the Goods in relation to any processes ADM may carry out in relation to the Goods after the sale is arranged with the Seller. This may cover such processes as collecting, drying and weighing the Goods. Any adjustment will be treated as a price deduction to the price payable to the Seller for the Goods and shown on the self billed invoice issued by ADM, (as opposed to being invoiced separately by ADM and treated as a separate supply of services by ADM).  This will be effected via the self-billing arrangement set out in clause 7.5 below.

7.3       Any increase in the price for any reason shall be subject to the express prior written consent of ADM.

7.4       Unless otherwise agreed in writing, the Seller shall submit invoices for Services based on the number of hours worked. ADM shall be entitled to reject an invoice which is not accompanied by ADM’s applicable Order and a signed time sheet.  

7.5       Where the parties have agreed that certain payments shall be made by self-billing invoice the following shall apply:

 ADM as the customer i.e. self-biller agrees to: (i) issue self-billed invoices in the name of and on behalf of the Seller and show all required details which constitute a valid VAT invoice; (ii) include a statement on the self-billed invoice that “any VAT shown is your output tax due to tax authorities”; (iii) retain a register including names, addresses and VAT numbers of all sellers who have agreed to self-billing; (iv) notify the Seller immediately if it changes its VAT identification number; ceases to be VAT registered or sells its business or part of its business as a going concern; (v) inform the Seller if the issue of self-billed invoices will be outsourced to a third party; (vi) if required, retain the signed notification that the Seller accepts the self-billed invoice.

The Seller agrees to: (i) authorize ADM to issue self-billed invoices, corrective and duplicate invoices in the name of and on behalf of the Seller; (ii) accept and retain such self-billed invoices and to not raise sales invoices for the transactions covered by the agreement; (iii) to sign and retain a copy of the agreement signed by both parties; (iv) to notify ADM immediately if it changes its VAT identification number, ceases to be VAT registered or sells its business or part of its business as a going concern; (v) account to the relevant tax authority for the output VAT contained on all self-billed invoices issued to it.

7.6       Unless special terms have been agreed in writing payment shall be made within 60 days of receipt of a valid invoice, but time for payment shall not be of the essence.

7.7       Without prejudice to any other right or remedy, ADM reserves the right to set off any amount owing at any time from the Seller to ADM or any parent, subsidiary or associated company of ADM against any amount payable by ADM to the Seller under the contract.  

7.8       No payment made by ADM shall imply acceptance of any Goods/Services supplied and shall not in any way restrict any claims or rights ADM may otherwise have against the Seller.

7.9       ADM shall be entitled to directly compensate sub-contractors and suppliers at any time. The payments thus made shall be deducted from any payments due to the Seller respectively reimbursed by the Seller to ADM.

Section 8 – Confidentiality and Property

8.1       The Seller shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes, initiatives or any other information which are/is of a confidential nature and have/has been disclosed to the Seller by ADM or its agents and any other confidential information concerning ADM’s business or its products which the Seller may obtain and the Seller shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Seller´s obligations to ADM and shall ensure that such employees, agents or sub-contractors are subject to like obligations of confidentiality as bind the Seller.

8.2       Materials, equipment, tools, copyright, design rights or any other forms of intellectual property rights in all drawings, specifications and data supplied by ADM to the Seller or not so supplied but used by the Seller specifically in the manufacture of the Goods/performance of the Services shall at all times be and remain the exclusive property of ADM but shall be held by the Seller in safe custody at its own risk and maintained and kept in good condition by the Seller until returned to ADM and shall not be disposed of other than in accordance with ADM´s written instructions, nor shall such items be used otherwise than as authorised by ADM in writing.

Section 9 – Termination

9.1       Either party may terminate the contract immediately if: (i) the other party is in breach of the contract and, in the event that the breach is capable of remedy, has failed to remedy such breach within 28 days of receipt of written notice specifying the breach and requiring it to be remedied; (ii) there is a material change in ownership or control of the other party; or (iii) the other party is wound up or becomes insolvent or has a receiver or administrative receiver appointed or suffers the appointment or the presentation of a petition for the appointment of an administrator or any equivalent or analogous event occurs.

9.2       ADM shall have the right at any time and for any reason to terminate a contract for Services in whole or in part by giving the Seller written notice whereupon all work on the contract shall be discontinued and ADM shall pay to the Seller fair and reasonable compensation for work-in-progress at the time of termination but such compensation shall not include loss of anticipated profits or any consequential loss.

Section 10 – Assignment

10.1     The Seller’s rights and obligations under the contract may not be assigned in whole or in part without the prior written consent of ADM and any such consent shall not be deemed to relieve the Seller of its obligations and liability to ADM pursuant to the contract.

10.2     ADM shall be entitled at any time by notice in writing to the Seller to assign the whole or any part of its rights and obligations under the contract to any affiliate or to any successor in title to the whole or part of that part of ADM’s business which relates to the Goods/Services.

Section 11 – Force Majeure

11.1     Neither Party shall be liable for delays or defaults in the performance of the contract due to causes beyond its respective control, including, but not limited to, Acts of God, accidents, riots, war,   Government interference, embargoes and strikes provided that the party claiming hereunder shall notify the other promptly in writing specifying the cause and probable duration of the delay or default and shall minimise the effects of such delay or default.

11.2     During the period of such delay by the Seller ADM may purchase its requirements elsewhere and at ADM’s sole option apply such purchases to reduce the quantities due under the Order.

11.3     ADM may, by notice in writing to the Seller, cancel any Services which in ADM’s opinion cannot be performed within a reasonable time after the due date without incurring any liability on the part of ADM.

Section 12 – ADM’s Affiliates

12.1     The Seller shall make the Goods/Services available for sale to ADM’s affiliates (as hereinafter defined) at a price and upon terms and conditions no less favourable than those set forth herein. Affiliates shall mean any company, corporation, partnership, syndicate, limited liability company or other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, ADM. “Control” shall mean ownership of twenty-five percent or more of the voting rights or equity in the specified entity.

Section 13 – General

13.1     The waiver of a breach of any contractual provision shall not be construed as a waiver of any succeeding breach.

13.2     If any provision of these conditions is held by any court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these conditions and the remainder of the provision in question shall not be affected.

13.3     The Seller and ADM shall comply with all applicable laws, regulations, decrees, orders and judgments (the “Law”) of any authority having jurisdiction over the concerned party or the subject matter of the contract pertaining to their obligations under  the contract, including, but not limited to, the applicable Law relating to anti-corruption, anti-money laundering and any embargo/ restricted party restrictions.

Section 14 –Applicable Law and Jurisdiction

14.1     These conditions and any contracts to which they apply shall be governed and construed in accordance with the substantive law of the country of the respective ADM company′s seat under exclusion of the United Nations Convention on Contracts for the International Sale of Goods.

14.2     Any dispute arising out of or in connection with these conditions and any contracts to which they apply shall be subject to the exclusive jurisdiction of the competent courts at the seat of the ADM contracting party, provided however that ADM may also bring proceedings against the Seller before the competent court having jurisdiction at the Seller’s domicile.

PART 2 – SPECIAL TERMS AND CONDITIONS

The following special terms and conditions shall apply to purchases of particular categories of Goods and Services. In the event of a conflict between the General Terms and Conditions set out in Part 1 and any Special Terms and Conditions set out below then the latter shall prevail.

Section 1 - Rapeseed

1.1       Germany. The Unified Contract Terms for the German Cereals Trade in the edition current at the date of the contractshall apply to purchases of rapeseed for Germany to the extent that they are consistent with the General Terms and Conditions set out in Part 1 and the special terms set out below.

1.1.1    ADM Rothensee GmbH & Co. KG. The following special terms shall apply to purchases of rapeseed by ADM Rothensee GmbH & Co. KG:

1.1.1.1 Quality. The price applies to Goods which are healthy, dry, pure and fit for storage. The Goods are: (i) healthy and fit for storage if they are free of mould, beetle infestation, foreign odours, immature, burnt or otherwise damaged seed and if the FFA content in the oil does not exceed 2%; (ii) dry, if they are either naturally dry or have been dried to a maximum of 9% using a safe process; (iii) pure, if straw, chaff and other foreign material does not exceed 2% after aspiration and (iv) free from living and/or dead pests. In addition, the producer of the Goods must have used certified planting seeds of a variety with a glucosinolate level below 18 micromol/g, as established in the official testing at the time of registration of the seeds within the E.U.

ADM shall arrange for samples to be analysed for the verification of the fulfilment of the quality requirements of the Goods as provided herein and any other specifications of ADMin an ADM laboratory or a recognised third party laboratory, at the option of ADM. The Seller shall be charged a fee of € 0.75 per tonne to cover control, sampling and shipping costs and the cost of the first analysis. ADM can combine deliveries on one day or 250 tonnes for the purposes of sampling. The results shall be communicated to the Seller promptly. Upon receiving the results of the first analysis both parties have the right to apply for a full control analysis. The other party shall be notified of this within 7 working days. The costs of € 25 per analysis shall be borne by the applicant. The mean of the two results shall form the basis for settlement. If the results of the first and second analysis vary significantly, either party has the right to arrange a third analysis by an agreed laboratory. The analysis fee shall be divided equally between the parties. Following issue of the third analysis the mean of the two results closest to each other shall form the basis of settlement. The analyses shall be carried out in accordance with the applicable ISO guidelines.

1.1.1.2 Sampling. Upon receiving the Goods at its designated store the recipient shall draw proper samples and at the same time determine the weight. 

1.1.1.3 Quality Settlement. Oil: basis 40% allowance/bonus 1.5%:1 i.e. for each percent (or fraction thereof) under 40% the Seller shall reimburse 1.5% of the contract price per tonne to ADM. For each percent (or fraction thereof) above 40% ADM shall pay a bonus of 1.5% of the contract price to the Seller.

Moisture: basis max. 9% moisture: 9%-6% = 0.5%:1 i.e. for each percent (or fraction thereof) under 9% - 6% ADM shall pay a bonus of 0.5% of the contract price. Goods with a water content of less than 6% shall be settled as regards quality like rape with 6% moisture. Goods with moisture in excess of 9% shall be dried by ADM at the Seller’s expense. Drying charges shall be calculated on the basis of the current scale of drying charges available on request.

Admixture: basis 2% max. 4% foreign material;under 2% = 0.5:1; above 2% = 1:1 i.e. for each percent (or fraction thereof) under 2% ADM shall pay a bonus of 0.5% of the contract price. For each percent (or fraction thereof) above 2% - 4% the Seller shall reimburse 1% of the contract price.

§ 36 of the Unified Contract Terms for the German Cereals Trade is invalid. ADM has the right to reject Goods that do not meet the agreed quality criteria at the time of delivery.

ADM is entitled after inspection to accept Goods that fall outside the contractually agreed values. In this case the following settlement tables shall apply: