General Terms and Conditions of Sale – Pharmavit Europe B.V.
1. GENERAL
1.1 These General Terms and Conditions of Sale (“Conditions”) govern the offering, sale, and delivery of all goods and/or services (hereinafter jointly referred to as the “Product(s)”) from or on behalf of Pharmavit Europe B.V. (Dutch trade register number: 24442269) (“Pharmavit”), to Customer
(“Customer”) and apply to all transactions between Pharmavit and Customer.
1.2 Pharmavit explicitly rejects the applicability of any general terms and conditions of Customer. Furthermore, the Conditions supersede any and all terms of prior oral and written quotations, communications, agreements and understandings of the parties in respect of the sale and delivery of the Products and shall apply in preference to and supersede any and all terms and conditions of any order placed by Customer and any other terms and conditions submitted by Customer. Failure by Pharmavit to object to the terms and conditions set by Customer, shall in no event be construed as an acceptance of any of the terms and conditions of Customer. Neither Pharmavit’s commencement of performance nor Pharmavit’s delivery shall be deemed as acceptance of any of Customer’s terms and conditions. If the Conditions differ from any of the terms and conditions of Customer, the Conditions and any subsequent communication or conduct by or on behalf of Pharmavit, including, without limitation, confirmation of an order and delivery of Products, constitute a counter-offer and not acceptance of such terms and conditions submitted by Customer. Any communication or conduct of Customer which confirms an agreement for the delivery of Products by Pharmavit, as well as acceptance by Customer of any delivery of Products from Pharmavit, shall constitute an unqualified acceptance by Customer of the Conditions.
1.3 The current version of the Conditions is available at www.pharmavit.eu. Pharmavit reserves the right to amend the Conditions at any time. Pharmavit will notify Customer of any such amendments by sending the amended Conditions to Customer, posting them on the aforementioned website or otherwise. The amended Conditions will take effect on the date of notification of these amendments. The amended Conditions shall apply to all transactions concluded between Customer and Pharmavit after the date of such notification.
1.4 Any electronic communication between Pharmavit and Customer shall be effective as originals and shall be considered to be in “writing” between the parties. The electronic communication system used by Pharmavit will serve as sole proof for the content and the time of delivery and receipt of such electronic communications.
1.5 Deviations from these Conditions shall only be valid to the extent that they have been expressly accepted in writing by Pharmavit.
2. QUOTATIONS, ORDERS AND CONFIRMATION
2.1 Unless stated otherwise by Pharmavit, quotations made by Pharmavit in whatever form are not binding to Pharmavit and merely constitute an invitation to Customer to place an order. All quotations issued by Pharmavit are revocable and subject to change without notice. Orders are not binding until accepted by Pharmavit in writing (“Confirmed Order”). Pharmavit shall be entitled to refuse an order without indicating the reasons. If the Customer accepts an offer made without obligations by Pharmavit, then Pharmavit shall have the right to revoke the offer within five working days after receipt of that acceptance from Customer, as a result of which no agreement shall have been formed between the parties.
2.2 Price quotations based on estimated or projected quantities are subject to increase in the event that actual quantities purchased during the specified period are less than the estimated or projected quantities.
2.3 Each delivery shall stand as a separate transaction and any failure to deliver shall have no consequences for other deliveries.
3. PRICES
3.1 Prices and currencies of Pharmavit’s products are as set out in the Confirmed Order. Unless otherwise agreed, Pharmavit’s prices include standard packaging but do not include Value Added Tax or any other similar applicable taxes, duties, levies or
charges in any jurisdiction levied in relation to the Products or the delivery thereof (“Taxes”). The amount of any Taxes levied in connection with the sale of Products to Customer shall be for Customer’s account and shall either be added to each invoice or separately invoiced by Pharmavit to Customer. If Pharmavit grants a discount, this discount only relates to the delivery specifically mentioned in the Confirmed Order.
3.2 Unless the prices have been explicitly indicated as firm by Pharmavit in the Confirmed Order, Pharmavit is entitled to increase the price of the Products still to be delivered if 1) the cost price determining factors have been subject to an increase and/or 2) according to the price inflation rate. The cost price determining factors include, but are not limited to, raw and auxiliary materials, energy, products obtained by Pharmavit from third parties, wages, salaries, social security contributions, governmental charges, freight costs, insurance premiums and general price inflation. Pharmavit shall notify Customer of such increase, which shall not exceed the increase in the determining cost factors and/or – if applicable – the price inflation rate.
4. PAYMENT AND CUSTOMER’S CREDIT
4.1 Unless stated otherwise in the Confirmed Order, payment shall be made on the basis of net cash, to be received by Pharmavit within 30 (thirty) days following the date of Pharmavit’s invoice. All payments shall be made without any deduction on account of any Taxes and free of set-off or other counterclaims.
4.2 With regard to payment for the Products, time is of the essence. Pharmavit may, without prejudice to any other rights of Pharmavit, charge interest on any overdue payment equal to the statutory commercial interest (‘Wettelijke handelsrente’) with a 2% (two percent) surcharge per annum from the due date computed on a daily basis until all outstanding amounts are paid in full. All costs and expenses incurred by Pharmavit with regard to the collection of overdue payments shall be for Customer’s account and will be estimated at 15% (fifteen percent) of the total sum (including interest and expert fees) claimable by Pharmavit, with a minimum of € 500,- (five hundred euros).
4.3 Every payment by Customer shall be deducted respectively from 1) the judicial and extra-judicial costs, 2) the accrued interest and, finally, 3) from the oldest outstanding claim regardless of any notice or statement to the contrary from Customer.
4.4 Any complaint with respect to the invoice must be notified to Pharmavit in writing within 10 (ten) days after the date of invoice. Thereafter, Customer shall be deemed to have approved the invoice and cannot make any claims regarding the invoice.
4.5 Customer is obliged to provide Pharmavit, at any time, at first request and to Pharmavit’s satisfaction, with sufficient security, to be determined and assessed by Pharmavit, regarding the costs of the Confirmed Order and/or any outstanding claim(s).
4.6 Pharmavit shall, to its sole discretion, check the creditworthiness of Customer at any time. Customer shall cooperate with this check at first request of Pharmavit, if necessary. If Pharmavit concludes that the creditworthiness of Customer is insufficient, Pharmavit shall require advanced payment before delivery. If, before or during the performance of the agreement, Pharmavit receives clear indications relating to a decreased creditworthiness of the Customer, Pharmavit shall have the right to, at its discretion, postpone its obligations under the agreement(s), request Customer to provide (extra) security, request advanced payment of the Confirmed Order and/or immediately claim the (purchase) price of what has already been delivered or implemented.
5. DELIVERY AND ACCEPTANCE
5.1 Agreements between Pharmavit and the Customer shall only be formed as a result of the fact that an irrevocable offer is timeously accepted by the Customer, or as a result of the fact that an offer made without obligation which has been accepted by the Customer has not been revoked by Pharmavit or as result of the fact than an offer of the Customer has been expressly accepted by Pharmavit in writing.
5.2 Unless stated otherwise in the Confirmed Order, any times or dates for delivery by Pharmavit are estimates and shall not constitute a fatal term. Delivery times which have been stated shall never be considered as fatal terms, unless Parties have agreed explicitly in writing.
5.3 Pharmavit is entitled to deliver the Products as stated in the Confirmed Order in parts and to invoice the partial deliveries separately. Delay in delivery of any Products shall not relieve Customer from its obligation to accept delivery thereof, unless Customer cannot reasonably be expected to accept such late delivery. Customer shall be obliged to accept the Products and pay the rate specified in the Confirmed Order for the quantity of Products delivered by Pharmavit.
6. CANCELLATION
6.1 Customer’s wrongful non-acceptance or rejection of Products or cancellation of the Confirmed Order, shall entitle Pharmavit to recover from Customer, in addition to and notwithstanding any other remedies at Pharmavit’s disposal:
(i) in the case of Products which reasonably cannot be resold by Pharmavit to a third party, the price of such Products as quoted in the Confirmed Order; or (ii) in the case of Products which can be resold by Pharmavit, damages equal to 50% (fifty percent) of the price for the Products as quoted in the Confirmed Order as liquidated damages.
7. EXAMINATION AND CONFORMITY TO SPECIFICATIONS
7.1 On delivery Customer shall examine the Products and satisfy itself that the Products delivered meet the agreed specifications for the Products
as stated in the Confirmed Order or, in the absence of agreed specifications, to the most recent specifications used by Pharmavit at the time of
delivery of the Products (the “Specifications”).
7.2 Complaints regarding any defect, default or shortage of the Products which would be apparent from a reasonable inspection on delivery, shall be made in writing immediately after receipt of the Products and must reach Pharmavit not later than 3 (three) days from the date of delivery, and 3 (three) days from the date on which any other claim (e.g. hidden defects) was or ought to have been apparent, but in no event later than: (i) 6 (six) months from the date of delivery of the Products; or (ii) the expiry of the Products’ shelf-life whichever is the earlier.
7.3 Any Use of the Products shall be deemed to be an unconditional acceptance of the Products by the Customer as of the date of delivery and a
waiver of all claims in respect of the Products.
7.4 Defects in parts of the Products do not entitle Customer to reject the entire delivery of the Products, unless Customer cannot reasonably be expected to accept delivery of the remaining non-defective parts of the Products. Complaints, if any, do not affect Customer’s obligation to pay as defined in Article 4 of the Conditions. Customer has no right to suspend payment for such reasons.
8. TRANSFER OF RISK AND RETENTION OF TITLE
8.1 In case of any Use of the Products, the risk of damages, loss or claims, will pass to Customer.
8.2 The title to the Products shall not pass to Customer and full legal and beneficial ownership of the Products shall remain with Pharmavit unless and until Pharmavit has received payment in full for the Products, including costs such as interest, charges, expenses etc.
8.3 Customer is obliged to provide, at first request from Pharmavit, full cooperation to execute the retention of title as mentioned in article 8.2 of this Conditions. This cooperation includes the granting of access by Customer to its premises to Pharmavit’s personnel or any persons acting on behalf of Pharmavit.
8.4 In the event of termination on the basis of Article 16 of the Conditions, Pharmavit shall, notwithstanding any other rights and remedies of Pharmavit, be entitled to require immediate return of the Products, or to repossess the Products.
9. LIMITED WARRANTY
9.1 Pharmavit solely warrants that on the date of delivery the Products shall conform to the Specifications. If and to the extent Products are in breach with such warranty, as determined in accordance with Article 7.1 of the Conditions, Pharmavit may, at its own discretion and within a reasonable timeframe, choose 1) either to repair or to replace the Products at no charge to Customer, 2) or to issue a credit-invoice for any such Products in the amount of the original invoice price. Accordingly, Pharmavit’s obligation shall be limited solely to repair or replacement of the Products or for credit of the Products. Any claim regarding indirect damages (e.g. loss of profit, loss of business opportunity, delay in business) and costs incurred by Customer are excluded and Pharmavit cannot be held liable for such damages and costs.
9.2 Pharmavit’s obligation to repair, replace or credit shall be contingent upon receipt by Pharmavit of timely notice of any alleged non-conformance of Products and, if applicable, the return of the Products, in accordance with Article 7.
9.3 The foregoing warranty is exclusive and in lieu of all other warranties, representations, conditions or other terms, express, implied, statutory, contractually or otherwise, including, without limitation, any warranty of merchantability, suitability or fitness for any purpose, or absence of infringement of any claim in any intellectual property right covering the Products.
10. LIMITED LIABILITY
10.1 Pharmavit’s liability for any and all claims arising out of or in connection with the Products and the Use thereof shall per occurrence be limited to direct damages only and shall under no circumstances exceed the sales value of the defective batch of the relevant Product supplied by Pharmavit to Customer.
10.2 Pharmavit shall under no circumstances be liable to Customer or any other person for any kind of special, incidental, indirect, consequential or punitive damage or loss, costs or expenses, including without limitation; damage based upon lost goodwill, lost sales or profit, loss of business opportunity, delay in delivery, work stoppage, production failure, impairment of other goods or based on any other cause, and whether arising out of or in connection with breach of warranty, breach of contract, misrepresentation, negligence or otherwise.
11. FORCE MAJEURE
11.1 Neither party shall be liable in any way for any damages, loss, costs or expenses arising out of or in connection with any delay, restriction, interference or failure in performing any obligation towards the other party caused by any circumstance beyond its reasonable control, including, without limitation, acts of God, laws and regulations, administrative measures, orders or decrees of any court, earthquake, flood, fire, explosion, war, terrorism, riot, sabotage, accident, epidemic, strike, lockout, slowdown, labor disturbances, difficulty in obtaining necessary labor or raw materials, lack of or failure of transportation, breakdown of plant or essential machinery, emergency repair or maintenance, breakdown or shortage of utilities, delay
in delivery or defects in goods supplied by suppliers or subcontractors and Governmental measures, restrictions or decrees as a result of or in connection with a pandemic (“Force Majeure”).
11.2 Upon the occurrence of any event of Force Majeure, the party suffering thereby shall promptly inform the other party by written notice thereof specifying the cause of the event and how it will affect its performance of its obligations under the Confirmed Order. In the event of any delay, the obligation to deliver shall be suspended for a period equal to the time loss by reason of Force Majeure. However, should a Force Majeure event continue or be expected to continue for a period extending to more than 60 (sixty) days after the agreed delivery date, either Party is entitled to cancel the affected part of the Confirmed Order without any liability to the other Party.
12. MODIFICATIONS AND INFORMATION; INDEMNITY
12.1 Unless the Specifications have been agreed to be firm for a certain period of time or quantity of Products, Pharmavit reserves the right to change or modify the Specifications and/or manufacture of Products and to substitute materials used in the production and/or manufacture of Products from time to time without any notice to Customer. Customer acknowledges that data in Pharmavit’s catalogues, product data sheets and other descriptive publications distributed or published on its websites may accordingly be changed or altered from time to time, without notice.
12.2 Customer must utilize and solely rely on its own expertise, know-how and judgment in relation to the Products and Customer’s Use thereof. Consultation provided by Pharmavit shall not give rise to any additional obligations. Customer shall indemnify and hold Pharmavit harmless from and against any and all damages, losses, costs, expenses, claims, demands and liabilities (including without limitation product liabilities) arising out of or in connection with the Products and Customer’s Use
thereof.
13. COMPLIANCE WITH LAWS AND STANDARDS
13.1 Customer acknowledges that the Use of the Products may be subject to requirements or limitations under any law, statute ordinance, regulation, code or standard (“Laws and Standards”). Customer shall be exclusively responsible for (i) ensuring compliance with all Laws and Standards associated with its intended Use of the Products; and (ii) obtaining all necessary approvals, permits or clearances for such Use.
13.2 Pharmavit does not give any warranty, express or implied, regarding compliance or fitness for purpose of the Products and/or the (intended) Use thereof in respect of and in compliance with any Laws and Standards, as mentioned in article 13.1 of the Conditions. Pharmavit cannot be held liable for any kind of costs or damages suffered or incurred by Customer in this respect.
14. INDEPENDENT CONTRACTORS AND THIRD PARTIES
14.1 Pharmavit and Customer are independent contractors, and the relationship created hereby shall not be deemed to be that of principal and agent.
14.2 Pharmavit is entitled to make use of third parties in performing its obligations towards Customer.
15. NON-ASSIGNMENT AND CHANGE OF CONTROL
15.1 The Customer may not assign any of the rights or obligations under the Confirmed Order without the prior written consent of Pharmavit, except that either party may assign such rights and obligations to a third party acquiring all or a substantial part of its assets or business relating to the Products. The Customer is allowed to establish a pledge on (or with regard to) to the rights or obligations under the Confirmed Order, under the explicit condition that such pledge will be reported and specified immediately in writing by the Customer to Pharmavit.
15.2 Pharmavit shall have the right to terminate the Confirmed Order with immediate effect if at any time during the term of the Confirmed Order a person or group of persons, who are unrelated to the persons controlling Customer as of the date of the Confirmed Order, acquires control, through ownership of voting securities or otherwise, over Customer. Customer must notify Pharmavit of such acquisition within 10 (ten) days thereof. Pharmavit may exercise its right to terminate the Confirmed Order by giving Customer written notice of such exercise within 10 (ten) days after the date of receipt of such notice.
16. SUSPENSION AND TERMINATION
16.1 Pharmavit is entitled to terminate or dissolute the agreement with Customer, without any prior written notice, and without incurring any liability whatsoever, and without prejudice to its statutory and contractual rights, in the following cases:
i. if Customer is in default of the performance of its obligations towards Pharmavit and fails to provide to Pharmavit adequate assurance of its performance before the date of scheduled delivery; or,
ii. if Customer becomes insolvent or unable to pay its debts as they mature, goes into liquidation or any bankruptcy proceeding shall be instituted by or against Customer, a trustee or receiver or administrator is appointed for all or a substantial part of the assets of Customer, or if Customer enters into a deed of arrangement or makes any assignment for the benefit of its creditors (including the Dutch “WHOA”).
16.2 In case a situation mentioned in article 16.1 of the Conditions occurs, Pharmavit is also entitled to, by notice in writing forthwith, without prejudice to any of its other rights: (i) demand return and take repossession of any delivered Products which have not been paid for and all costs relating to the recovery of the Products shall be for the account of Customer; and/or,
(ii) suspend its performance or terminate the Confirmed Order for pending delivery of Products, unless Customer makes such payment for Products in advance basis or provides adequate assurance of such payment for Products to Pharmavit.
16.3 In any such event of Article 16.1 all outstanding claims of Pharmavit shall become due and payable immediately.
17. WAIVER
17.1 Failure by Pharmavit to enforce any provision of the Conditions shall not be construed as a waiver of Pharmavit’s right to act or to enforce any such term or condition and Pharmavit’s rights shall not be affected by any delay, failure or omission to enforce any such provision. No waiver by Pharmavit of any breach of Customer’s obligations shall constitute a waiver of any other prior or subsequent breach.
18. SEVERABILITY AND CONVERSION
18.1 In the event that any provision of the Conditions shall be held to be invalid or unenforceable, the same shall not affect in any respect whatsoever, the validity and enforceability of the remaining provisions between the parties and shall be severed therefrom. The pertaining provisions held to be invalid or unenforceable shall be reformed to meet the legal and economic intent of the original provisions to the maximum extent permitted by law. Parties shall enter into good faith negotiations to reform the invalid or unenforceable provisions.
19. LIMITATION OF ACTION
19.1 Unless otherwise stated hereunder, no action by Customer shall be brought unless Customer first provides written notice to Pharmavit of any claim alleged to exist against Pharmavit within 30 (thirty) days after the event becomes known to Customer and an action is commenced by Customer within 12 (twelve) months after such written notice.
20. GOVERNING LAW AND VENUE
20.1 The parties’ rights and obligations arising out of or in connection with the Confirmed Order and/or the Conditions shall be exclusively governed, construed, interpreted and enforced according to Dutch law, without regard to the conflict of law’s provisions thereof. The United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980 (CISG) is explicitly excluded and shall not apply between parties.
20.2 Parties agree that any suits, actions or proceedings that may be instituted by any party shall be initiated exclusively before the competent court of the District Court of Zeeland-West-Brabant, location Breda, without restricting any rights of appeal and without prejudice to Pharmavit’s right to submit the matter to any other competent court.
21. SURVIVAL OF RIGHTS
21.1 The parties’ rights and obligations shall be binding upon and inure to the benefit of the parties and their respective successors, permitted assigns, directors, officers, employees, agents and legal representatives. Termination of one or more of the parties’ rights and obligations, for whatever reason, shall not affect those provisions of the Conditions which are intended to remain in effect after such termination.
22. HEADINGS
22.1 The headings contained in the Conditions are included for mere convenience of reference and shall not affect the latter’s construction or interpretation.
23. INTELLECTUAL PROPERTY
23.1 All intellectual property rights arising out of or in connection with the Products shall remain and/or become the exclusive property of Pharmavit.
23.2 Pharmavit has not verified the possible existence of third party intellectual property rights which might be infringed as a consequence of the sale and/or delivery of the Products and/or its intended Use and Pharmavit shall not be held liable for any loss, costs or damages in that respect. Customer shall indemnify and hold harmless Pharmavit for any such third party claim regarding any (alleged) infringement of intellectual property rights (including damages suffered and (legal) costs incurred by Pharmavit).
23.3 The sale of Products shall not, by implication or otherwise, convey or give any right to any license under any intellectual property right relating to the compositions and/or applications of the Products, and Customer explicitly assumes all risks of any intellectual property infringement by reason of the Use of the Products, whether singly or in combination with other materials or in any processing operation.
24. LANGUAGE
24.1 The original version of the Conditions is made in the English language. In the event of any inconsistency or contradiction between the English version and any translation thereof, the English version shall prevail.