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General Conditions of sales and delivery

TERMS OF AGREEMENT

The terms and conditions set forth herein constitute the entire Agreement between MEDICEL AG ("SELLER") and BUYER. SELLER shall not be bound by any terms and conditions in BUYER’s order form, other documents or correspondence from the BUYER which add to, modify, conflict with or contradict any of the terms or conditions set forth herein. Any deviations from the General Terms and Conditions must be accepted in writing by a person authorized on SELLER’s behalf. Neither SELLER’s acknowledgement of a purchase order nor SELLER’s failure to object to conflicting, contrary or additional terms and conditions in a purchase order shall be deemed an acceptance of such terms and conditions or waiver of the provisions hereof. All purchase orders are subject to credit approval. The terms of this Agreement shall control over any trade usage or prior course of dealing.

PRICES AND TAXES

All prices are net and FCA as per Incoterms 2020 if applicable, except otherwise agreed in writing. The SELLER’s invoices must be settled in the same currency as stated on the invoice. If this should not be the case, the currency risks must be overtaken by the purchaser.

Prices are exclusive of taxes, impositions and other charges, including sales, use excise, value added and similar taxes or charges imposed by broker’s fees, consular fees, document fees, banking expenses and import duties. Any such tax, fee, or charge of any nature whatsoever shall be paid by the BUYER.

The SELLER reserves the right to amend prices as specified in Product price sheets, price list or otherwise presented without prior notice at any time.

TERMS OF PAYMENT

Unless otherwise specified in writing, the payment terms are as defined on the SELLER’s invoice. Accounts past due will be subject to a monthly charge at the rate of one percent per month (an annual rate of twelve percent) or such lower rate as may be the maximum allowable by law, to cover the cost of servicing these accounts.

DELIVERY, SHIPMENT AND RISK OF LOSS

Delivery shall be made in accordance with the international commercial terms (currently Incoterms 2020) in force at the formation of the Agreement. All deliveries will be made FCA, unless otherwise agreed in written form. “FCA” means that the SELLER delivers when he places the goods at the disposal of the BUYER at the SELLER’s premises or another named place not cleared for export and not loaded on any collecting vehicle. Risk of loss or damage shall pass to BUYER at the time of such delivery. Unless otherwise specified, BUYER is obligated to obtain insurance against damage to the Products being shipped.

PROPERTY AND RESERVATION OF TITLE

Notwithstanding delivery and passing of risk in the goods, or any other provision of these conditions, the property in the goods shall not pass to the BUYER until the SELLER cleared funds payment in full of the price of the goods and all other goods agreed to be sold by the SELLER to the BUYER for which payment is then due. However, BUYER shall be permitted to sell such goods as part of its normal business operations. BUYER hereby assigns to SELLER its claims arising from the onward sale of such goods subject to reservation of title. If further measures are required to substantiate the reservation of title or the assignment of claims (e.g. registration or written individual assignment of claims), BUYER hereby undertakes to implement the necessary measures on first request from SELLER. BUYER hereby grants its permission for any registration and entry in the Property Register if applicable.

PRODUCT CHANGES

SELLER reserves the right, without prior approval from or notice to the BUYER to make changes to the Products which do not adversely affect physical or functional interchangeability or performance at a higher level of assembly of Products when required for purposes of safety, or to improve performance.

SELLER’S LIMITED WARRANTY

SELLER warrants to BUYER that upon delivery to BUYER the Products purchased hereunder shall conform to the applicable manufacturer’s specifications for such Products, be new and free from any defects in material, design and workmanship and that any SERVICES are performed in a careful, competent and professional manner. SELLER makes no other warranty, express or implied, with respect to the Products or Services. These warranties shall be waived entirely if

  1. the Products have been subject to misuse or neglect by BUYER or its customer, or
  2. the Products have been altered or repaired by BUYER or without SELLER's approval.

The warranties in this Agreement are given in lieu of all other warranties, express or implied, which are specifically excluded as to any matter whatsoever, including without limitation, implied warranties of merchantability or fitness for a particular purpose.

SELLER shall, at his own option and cost, either i) refund or ii) repair or iii) replace any Products found to be faulty by reason of defective design, material or workmanship during a warranty period of twelve (12) months starting from the delivery of the respective Products. Thereby, in cases of repair and replacement, and where SELLER is liable under this warranty, the Products shall be returned to BUYER, transportation charges prepaid. Such refund, replacement or repair of Products shall be made by SELLER.

SELLER shall transfer to BUYER whatever transferable warranties and indemnities SELLER receives from the manufacturer of the Products, including any transferable warranties and indemnities respecting patent infringement.

ACCEPTANCE OF PRODUCTS AND PRODUCT RETURNS

Inspection and acceptance of the Products and of services performed shall be in BUYER’s responsibility. BUYER is deemed to have accepted the Products unless written notice of rejection is received by SELLER within ten (10) days after delivery of the Products or after the defect was first noticeable. BUYER waives any right to revoke acceptance thereafter. BUYER shall report any discrepancy in shipment quantity or damage within ten (10) days after delivery. No return of Products shall be accepted by SELLER without a Return Material Authorization (“RMA”) Number, which may be issued by SELLER in its sole discretion. Returned Products must be in original manufacturer’s shipping cartons complete with all packing materials. All Products for return shall be returned freight prepaid in the manner specified in the RMA. If returned Products are claimed to be defective, a complete description of the defect must be included with the returned Products. Products not eligible for return shall be returned to BUYER, freight collect.

FORCE MAJEURE / DISCLAIMER

SELLER shall not be liable for failure to fulfil its obligations herein or for delays in delivery due to causes beyond its reasonable control, including, but not limited to, acts of God, natural disasters, acts or omissions of other parties, acts or omissions of civil or military authority, Government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, riots, war, acts of terrorism, delays in transportation or inability to obtain labour or materials through its regular sources. SELLER’s time for performance of any such obligation shall be extended for the time period of such delay or SELLER may, at its option, cancel any order or remaining part thereof without liability by giving notice of such cancellation to BUYER.

LIMITATION OF LIABILITY

BUYER shall not in any event be entitled to, and SELLER shall not be liable for indirect, special incidental or consequential damages of any nature including, without limitation, business interruption costs, removal and/or reinstallation costs, replacement costs, loss of profit or revenue, loss of data, promotional or manufacturing expenses, overhead, injury to reputation or loss of customers, even if SELLER has been advised of the possibility of such damages.

BUYER’s recovery from SELLER for any claim shall not exceed BUYER’s purchase price for the Product giving rise to such claim irrespective of the nature of the claim, whether in the Agreement, tort, warranty, or otherwise. SELLER shall not be liable for and BUYER shall indemnify, defend and hold SELLER harmless from any claims based on SELLER’s compliance with BUYER’s designs, specifications or instructions, or modification of any Product by parties other than SELLER, or use in combination with other Products.

However, should the Products ordered and delivered have a defect which causes damage to persons or to property other than Products delivered under this agreement, the BUYER shall indemnify and hold SELLER harmless from any such damage or claims from third parties connected therewith (including without limitation reasonable attorney fees), with the exception of cases of intentional illegality, gross negligence or with respect to other situations in which a waiver of liability is excluded by legal provision.

CANCELLATION

Orders and sales may only be cancelled upon SELLER’s written approval in which event BUYER shall pay reasonable cancellation charges.

BANKRUPTCY AND INSOLVENCY

If BUYER becomes bankrupt or insolvent or enters into an arrangement or assignment for the benefit of creditors, or commences to be wound up or suffers a receiver, trustee or custodian to be appointed over any of the property of the BUYER, then SELLER may by written notice, cancel BUYER’s order without judicial intervention or declaration of default of BUYER and without prejudice to any right or remedy which shall have accrued or shall accrue thereafter to SELLER.

STATEMENTS AND ADVICE

If statements or advice, technical or otherwise, are offered or given to BUYER, such statements or advice shall be deemed to be given as an accommodation to BUYER and without charge and SELLER shall have no responsibility or liability for the content or use of such statements or advice.

EXPORT AND IMPORT LICENCES / REGISTRATIONS

The BUYER shall be exclusively responsible for obtaining all export/import licenses, permits necessary and Products registrations to import into BUYER’s or ultimate user’s country.

APPLICABLE LAW

To the relationship between the parties Swiss material law shall exclusively apply, whereby the UN Convention on Agreements for the international Sale of Goods is explicitly excluded.

 

JURISDICTION

Any dispute arising under or in connection with the Agreement shall be subject to the exclusive jurisdiction of the competent courts of the Canton St. Gallen, Switzerland. However, the SELLER reserves the right to initiate court proceedings against the BUYER in any other court of competent jurisdiction.

COMPLIANCE CLAUSES

Associated Persons means any person performing services for or on behalf of a party, including but not limited to subsidiaries, employees, agents, distributors and Agreementors.

Sanctioned Party means any party or parties listed on any list of designated or other restricted parties maintained under Trade Restrictions, including but not limited to the Consolidated List of Financial Sanctions Targets in the UK maintained by HM Treasury, the consolidated list of persons, groups and entities subject to EU financial sanctions maintained by the European Commission, and the Specially Designated Nationals and Blocked Persons List maintained by the US Office of Foreign Assets Control;

Trade Restrictions means any applicable export controls, trade or economic sanctions, embargoes or similar laws, regulations, rules, licences, orders or requirements including, without limitation those of the UN, UK, U.S. and the EU

Trade Restrictions

The BUYER hereby acknowledges and agrees that the supply of the goods and/or services may be subject to Trade Restrictions.

The SELLER reserves the right to carry out screening and background checks on the BUYER prior to the supply of the goods and/or services and at any time during the performance of the Agreement.  The BUYER shall provide all assistance to the SELLER that the SELLER reasonably requires in relation to such checks.

The BUYER is solely responsible for complying with and shall not do anything which would cause the SELLER to be in breach of, Trade Restrictions.  In particular, the BUYER warrants and represents that it:

  1. is not, and is not owned or controlled by a Sanctioned Party;
  2. will not use, sell, resell, export, re-export, transfer, distribute, dispose of, disclose or otherwise deal with the goods and/or services, directly or indirectly, to: (i) any country, territory, or destination with which the SELLER, as a matter of policy, does not conduct business (including but without limitation to Iran, Syria, Sudan, Cuba, Crimea & Sevastopol and North Korea, and any other territory subject to comprehensive Trade Restrictions from time to time); (ii) any other territory to which the supply of the goods and/or services would be restricted or prohibited under Trade Restrictions (subject to the BUYER obtaining any and all licences and/or approvals required to make such a supply); or (iii) any Sanctioned Party (or any party owned or controlled by a Sanctioned Party). ; and
  3. will obtain and maintain any required export licence or other governmental approval and complete such formalities as may be required under Trade Restrictions in order to use, sell, resell, export, re-export, transfer, distribute, dispose of, disclose or otherwise deal with the goods and/or services.
  4. will not put the goods and/or services, in their entirety or in part, to any use in connection with the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons or the development, production, maintenance or storage of missiles capable of delivering such weapons or to any military end-use in violation of any applicable embargo (including, but not limited to, embargoes maintained by the EU, UK, OSCE and/or UN). In addition, the BUYER shall not sell, resell, supply, export, re-export, transfer, divert, distribute or dispose of the goods and/or services to any third party where the BUYER knows or has grounds for suspecting that the goods and/or services are or may be intended for one of the uses specified in this Condition.

In addition to any other remedy available to the SELLER, the BUYER shall indemnify, keep indemnified and hold harmless (on a full indemnity basis) the SELLER and its affiliates, officers and personnel against any and all direct or indirect liabilities, claims, demands, damages, losses or expenses (including legal and other professional advisers' fees and disbursements), interest and penalties suffered or incurred as a result of any breach of this Condition. The SELLER reserves the right to terminate the Agreement immediately upon written notice and without penalty in the event of such breach.

The SELLER shall not be obliged to perform any obligation under the Agreement and shall have the right to terminate the Agreement, without being liable for any damages or costs of any kind, if in its sole discretion it reasonably believes that such performance in full or in part would place it in violation of any Trade Restrictions (including, for the avoidance of doubt, if such violation would be the result of any delay to, or refusal of, the grant of any licence required under Trade Restrictions).

Nothing in this Condition shall require either party to act in any way contrary to any blocking or antiboycott laws with jurisdiction over such party's operations, including (if applicable) the Anti-Foreign Sanctions Law of the People's Republic of China.

ANTI-BRIBERY CLAUSE

The BUYER shall comply with all local and national laws in the territories in which it operates.

The BUYER shall (and shall procure that its Associated Persons shall):

  1. not make any offer, payment, promise to pay, or authorise the giving of any monies or financial or other advantage to any person: (i) for the purpose of inducing or rewarding that person (or any other person) to perform their role or function improperly; (ii) for the purpose of influencing a public official in relation to any decision, act or other performance (including failure to perform) of their official role or function, with the intention of obtaining or retaining business or a business advantage; or (iii) that is otherwise for the purpose of improperly obtaining or retaining business or a business advantage of any kind;
  2. not request, agree to receive, or accept, any monies or financial or other advantage in return or as a reward for performing their role or function improperly;
  3. not engage in any other activity, practice or conduct which would constitute an offence under any other applicable anti-corruption or anti-bribery legislation, or that would place the SELLER in breach of such legislation; and
  4. have, maintain in place and enforce throughout the term of any Agreement its own policies and procedures, including but not limited to adequate procedures to ensure compliance with any applicable anti-bribery legislation and the requirements of this Condition.

Modern Slavery

The BUYER shall comply with all applicable anti-slavery and human trafficking laws, statutes, regulations and codes from time to time in force including but not limited to the UK Modern Slavery Act 2015 and will not engage in any activity, practice or conduct that would constitute an offence under sections 1, 2 or 4, of the Modern Slavery Act 2015.

Tax

The BUYER shall (and shall procure that its Associated Persons shall) comply with all applicable taxation laws and shall not commit an offence consisting of the evasion of tax, or the facilitation of tax evasion by another person.

The SELLER may terminate the Agreement immediately upon written notice to the BUYER where it reasonably believes that the BUYER has breached this Condition 2 and the BUYER shall indemnify the SELLER from all damages, penalties, fines and/or costs of any kind arising from, or relating to, any breach of the Compliance Clauses.