General Conditions Pharmeko Group B.V.
Article 1 Definitions
1.1 In these General Terms and Conditions, the following definitions apply:
– Seller: Pharmeko Group B.V., listed in the trade register of the Chamber of Commerce under file number 64589633, having its business address at De Oude Wijk 15, (2771 WT) Boskoop;
– Buyer: the other party to the Contract;
– Contract: the Contract between Seller and Buyer with respect to the purchase and sale of goods and/or services;
– Parties: Seller and Buyer jointly;
– Products: the goods and/or services offered or supplied by Seller;
– Order: every Order issued by Buyer to Seller for the supply of Products;
– Terms and Conditions: these general terms and conditions, as filed with the Chamber of Commerce under file number 64589633;
– in writing: both electronic and non-electronic written communication between Parties.
Article 2 Applicability
2.1 The Terms and Conditions shall be applicable to all Contracts, as well as other legal relationships whereby Seller acts as potential Seller of Products, including all offers made by Seller regarding Products and Orders and the acceptance thereof by Seller, unless Parties expressly deviate in writing from the Terms and Conditions.
2.2 Any variation to or abandonment of these Terms and Conditions shall be inapplicable unless agreed in writing in a signed agreement between Seller and Buyer.
2.3 If any part of these Terms and Conditions is or becomes invalid, the other parts of these Terms and Conditions shall remain in full force and a provision shall apply between Parties which approximates as closely as possible to the invalid provision in its aim and tenor, and which is valid.
2.4 The electronic communication system used by Seller shall provide sole evidence of the content and time of delivery and receipt of this electronic communication.
Article 3 Quotations, orders and confirmation
3.1 Quotations given by Seller in whatever form prior to the conclusion of a Contract are not binding on the Seller, but are merely an invitation to Buyer to place an Order. All prices quoted by Seller may be revoked and may be changed without (prior) notice.
3.2 The Contract shall only come into force when Seller has accepted the Order in writing, or has made a start on its discharge. The Seller may choose not to accept an Order at any time, without providing reasons, or to refuse an Order or attach certain conditions to the supply of the Products.
3.3 All information accompanying a quotation, such as, but not limited to, price lists, calculations, catalogues and suchlike, shall remain the property of Seller at all times and must be returned to Seller on demand, with carriage paid.
3.4 Prices quoted which are based on estimated or projected quantities may be increased if the quantities actually purchased during the given period are lower than the estimated or projected quantities.
3.5 Statements made by employees, functionaries, representatives and/or agents of Seller and Contracts entered into by the same shall not be binding on the Seller, unless and only insofar as these were confirmed or recorded in writing by
(a) legally authorised representative of Seller.
3.6 The fact that Seller has supplied Products to Buyer with some regularity shall not result in a continuing performance contract, of whatever type, between Parties, or in an obligation on the part of Seller to accept a (new) order.
3.7 Any samples supplied to Buyer are provided solely for informative purposes and are no indication of explicit or implicit conditions or guarantees of whatever kind, including those relating to quality, description, saleability or suitability for a specific purpose. It is assumed that Buyer will have investigated this to its satisfaction before ordering the Products.
Article 4 Prices
4.1 Unless otherwise stated in writing in the Contract, the Seller’s prices shall be in euros and include standard packaging, yet exclude any VAT that might be payable and/or all other comparable applicable taxes, duties, levies and/or charges
imposed in a specific country on the Products and/or their supply (‘taxes’).
4.2 Seller is entitled at all times to change the prices, unless expressly agreed in writing in the Contract that ‘fixed’ prices apply. Seller shall inform Buyer promptly of price changes.
Article 5 Payment and security
5.1 Unless otherwise expressly agreed in writing in the Contract, payment must be made within thirty (30) days of the date of the invoice. The date of payment is the date on which the Seller’s bank account is credited.
5.2 Payment by Buyer must be made solely in a manner dictated by Seller and into a bank account designated by Seller.
5.3 Payments from Buyer shall serve in the first instance to pay any interest that might be outstanding, followed by legal and other costs incurred by Seller, and finally any damage suffered by Seller, and will only then be deducted from the oldest outstanding amount due.
5.4 If the period referred to in Article 5.1 is exceeded, all of Buyer’s payment obligations shall be due in full and Seller shall be entitled to suspend any further deliveries to Buyer. Buyer will also be obliged – without the need for any demand or notice of default – to pay default interest of 12% per annum or, if higher, one and a half times the ruling rate of statutory commercial interest per annum, in accordance with the applicable legislation, from the due date until all outstanding amounts have been paid in full. All costs/expenses incurred by Seller in connection with the collection of overdue payments (including but not limited to reasonable fees for solicitors, experts, court fees and other legal costs) shall be borne by Buyer.
5.5 If there are good grounds for suspecting that Buyer will not meet its (payment) obligations under the Contract, Buyer is obliged to – as demanded by Seller and at its own expense – provide satisfactory (additional) security, as desired by Seller, for complete compliance with all its obligations under the Contract.
5.6 If the Buyer contests the invoice in full or in part, Buyer must inform Seller of this in writing within eight (8) calendar days of the date of the invoice, clearly stating the reason(s). Failure to comply with these requirements will result in termination of the Buyer’s right to contest the invoice. The burden of proof regarding valid contestation of the invoice rests with the Buyer. Contestation of the invoice does not release the Buyer from its payment obligation. If the Buyer has signed the invoice and the consignment note, it has in this way forfeited its rights to contest the invoice.
Article 6 Delivery and acceptance
6.1 Unless otherwise agreed in writing in the Contract, all Products shall be delivered ‘Ex-works’. The definition of ‘Ex- works’ is that given in the latest version of the INCOTERMS published by the International Chamber of Commerce in Paris at the inception of the Contract. Buyer shall accept the Products on delivery and bear the costs of transport and insurance.
6.2 Delivery dates given by Seller will be adhered to wherever possible, but are only estimates and are not the specified periods referred to in Article 6:83 of the Dutch Civil Code, unless otherwise expressly agreed in writing between Parties. Seller will only be in breach of the Contract after it has been declared in default by Buyer in writing at the end of the agreed delivery period, whereby Buyer granted a reasonable period for compliance, which expired without being utilised.
6.3. If Seller is unable to execute the Contract in full or in part within the agreed period, Seller shall inform Buyer of this as quickly as possible in writing.
6.4 Seller shall not be liable for any damage or loss that might be caused due to ill-timed delivery by suppliers of Seller to Buyer.
6.5 Seller may perform the deliveries in parts and invoice part- deliveries separately. Seller is also entitled to combine Orders and supply them to Buyer in one delivery.
6.6 Buyer may not terminate or cancel the Contract or refuse delivery of Products if Seller has exceeded the delivery period.
6.7 Buyer is obliged to take delivery of the Products as soon as these are made available to it by Seller. Buyer is obliged to provide Seller with reasonable compensation for storage and all necessary costs incurred if it is unable, for whatever reason, to take delivery of the Products.
Article 7 Cancellation
7.1 Seller is released from its obligations under the Contract if
Buyer fails to cooperate in the delivery after Seller has granted Buyer a period of eight (8) days in which to do so.
7.2 If Buyer wrongfully refuses or rejects Products, or wrongfully cancels or refuses to acknowledge a Contract, Seller may make a claim immediately due and payable against Buyer – in addition to all other losses resulting from such action – of:
(i) if the Products cannot reasonably be sold on to a third party by Seller within a reasonable period (as determined by Seller): the price of these Products; or
ii) if the Products can be sold on by Seller or if a legal claim relating to the price is disallowed in some other way on legal grounds: compensation equal to fifty percent (50%) of the current price of the Products, by way of fixed compensation.
Article 8 Transport and risks
8.1 The means of transport, packaging, insurance, etc. shall be determined by Seller unless specific instructions have been received from the Buyer, with Seller taking due care but accepting no liability whatsoever. Any specific instructions from the Buyer in connection with transport, packaging or insurance will only be followed and implemented if the Buyer has declared in writing that it will bear any ensuing costs and risks.
Article 9 Quantities & deviations
9.1 Limited deviations in terms of stated dimensions, weights, numbers, colours and other such details shall not count as shortcomings.
9.2 Unless otherwise expressly agreed in writing, Seller reserves the right to change or modify the agreed specifications of the Products, or – if no specifications were agreed – the most recent specifications applied by Seller at the time of delivery of the Products, and/or the construction and/or the manufacture of the Products, and replace the materials used in the production and/or manufacture of the Products and/or (the addition of) raw materials and/or other aspects from time to time without notification in writing.
9.3 Buyer is obliged, with respect to the Products and their use by Buyer and when using the information provided by the Seller for the Buyer’s intended purposes, to make use of and rely solely on its own expertise, knowledge and judgement. Seller accepts no liability whatsoever regarding information about the Products, recommendations and/or advice provided by Seller to Buyer.
Article 10 Inspection and compliance with specifications
10.1 Buyer is obliged, when delivering the Products, to check that they are in sound condition and undamaged.
10.2 Buyer must note any defects or damage to Products and/or packaging (that can be) identified on delivery (or have this done) on the delivery note, the invoice and/or the transport documents. In the absence of such notification, Seller will no longer consider relevant complaints. The Seller’s records are decisive in this connection.
10.3 All complaints relating to directly visible defects must be reported to Seller in writing within eight (8) days of the (part) delivery of the Products, stating the nature and scale of the defects.
10.4 All complaints relating to defects which are not directly visible must be reported to Seller in writing no later than eight (8) days from the moment at which such faults are discovered, or should reasonably have been discovered, and at all events no more than three (3) months following delivery of the Products in question, stating the nature and scale of the defects.
10.5 After the aforementioned periods have expired, it will be assumed that the Products were received in good condition by Buyer.
10.6 Decisions on whether or not the Products supplied comply with the specifications agreed for the Products as stated in the Contract or – if no specifications were agreed – with the most recent specifications applied by Seller at the time of delivery of the Products, are made exclusively on the grounds of an analysis of the samples and/or administrative data as retained by Seller. Products for which Seller provides permission/order in writing for their return will be returned to Seller at the Buyer’s risk, and to an address specified by Seller.
10.7 If Buyer identifies defects in some of the Products referred to in the Contract, this does not entitle Buyer to refuse delivery of the remaining Products. Following receipt of notification regarding a defect, Seller is entitled to suspend all further deliveries until it has been established that the complaints were unfounded and/or until they have been refuted, or until the fault has been fully rectified.
Article 11 Limitation period
All claims by Buyer against Seller, irrespective of whether they are based on the law or a Contract, shall be made during a period of twelve (12) months from the moment at which the limitation period begins, according to Dutch statutory regulations. At the end of the twelve-month period, all legal claims by Buyer shall expire.
Article 12 Retention of title
12.1 Title of all Products supplied shall remain with Seller until payment in full has been made by Buyer pursuant to the agreement on which the delivery was based, including possible losses and damage, costs, interest and fines, also if the Buyer provided security. Until title has passed to the Buyer, Buyer shall:
a) hold the Products as bailee for Seller;
b) store the Products (free of charge for Seller), separately from all goods belonging to the Buyer or third Parties, in such a way that they are clearly identifiable as the Seller’s property;
c) not destroy, damage or make illegible identifying marks or packaging on or relating to the Products;
d) store the Products in good condition and make sure that the goods are always kept dry, cool, frost-free and in their original packaging, and keep the goods insured for Seller for their full value and against all risks. On request, Buyer will furnish Seller with the insurance policy;
e) inform Seller immediately in writing if third Parties lay claim to any of the Products or Buyer is aware that third Parties intend to lay claim to Products.
12.2 Seller is entitled to remove Products (or have them removed) from their location if Buyer fails to meet its obligations as referred to in Article 12.1 or in the event of termination on the grounds of Article 16, notwithstanding all other rights of Seller. Buyer shall cooperate fully in this. Buyer grants the Seller an irrevocable right to enter any premises used by or on behalf of Buyer. All costs associated with repossessing Products shall be borne by Buyer. Seller is entitled to recoup any damage that might be caused to Products from Buyer or charge Buyer for any possible reduction in the value of the Products.
12.3 During the period referred to in Article 12.1, the Buyer is forbidden to dispose of Products, to pledge or encumber them in some other way, to lease, loan or lose control of them in any other way, unless in the context of its normal business operations.
Article 13 Limited guarantee
13.1 Seller only guarantees that the Products will comply with the agreed specifications of the Products, or – if no specifications were agreed – the most recent specifications applied by Seller at the time of delivery of the Products, on the date of delivery. If and insofar as Products fail to satisfy this guarantee, which will be determined in accordance with the provisions of Article 10 of these Terms and Conditions, the Seller may, at its discretion, either repair/replace the Products free of charge within a reasonable period of time, or issue a credit note with respect to the Products to the value of the original price stated on the invoice.
13.2 The Seller’s obligation to repair, to replace or issue a credit note for the Products is dependent on receipt by Seller of prompt notification regarding the alleged shortcomings of the Products in accordance with Article 10 of the Terms and Conditions.
13.3 Unless otherwise expressly agreed in writing, Seller does not guarantee compliance of the Products with current laws or regulations, bye-laws, rules and codes or standards.
Article 14 Liability and indemnification
14.1 Insofar as permitted by law, Seller shall be under no liability whatsoever for damage, of whatever kind, direct or indirect, including but not limited to trading loss, damage to movable and immovable property, personal injury, financial loss, immaterial damage or consequential loss suffered by Buyer and/or third Parties. The Seller’s liability is at all events limited to the amount paid out by the insurer in such a case.
14.2 Seller cannot be held liable with respect to damage that is not covered by the Seller’s statutory liability insurance.
14.3. With respect to the Products supplied by Seller to Buyer, Buyer shall indemnify Seller against all claims from third Parties, whatever their nature.
Article 15 Force majeure
15.1 Seller shall be under no liability for damage and/or costs/expenses if it is prevented from, delayed, limited, or interfered with in the discharge of an obligation towards Buyer due to circumstances beyond the reasonable control of the Seller, including but not limited to natural disasters, laws and regulations, bye-laws, rules, measures of a legislative nature, government action or other administrative measures, court orders or decisions, earthquakes, floods, fire, explosions, war, terrorism, riots, sabotage, accidents, epidemics, strikes, lock- outs or go-slows, unrest on the shop floor, demonstrations, disturbances, blockades, problems in acquiring the necessary manpower or raw materials, lack of means of transport or disruptions to transport, breakdown of plant or essential machinery, emergency repairs or maintenance, disruptions to public services or a shortage of public services, delays in the supply of or defects in the goods delivered by suppliers or subcontractors (“force majeure”).
15.2 In the event of force majeure, as referred to in section 1, Seller shall inform Buyer of this immediately in writing, stating the cause of the force majeure and the way in which it will influence the discharge of the Seller’s obligations under the Contract. In the case of delay, the obligation to deliver will be suspended for a period equal to the time lost due to the force majeure. If a case of force majeure continues, or is expected to continue, for longer than two (2) months after the agreed delivery date, each party is entitled to terminate the relevant part of the Contract, without any liability towards the other party.
Article 16 Suspension, settlement and termination
16.1 Notwithstanding the Seller’s other rights, Seller is entitled, without any notice of default and without any obligation to pay damages, to terminate the Contract and/or Order in full or in part, or to suspend the further execution of the Contract, if:
(a) Buyer does not, does not adequately or does not promptly discharge its obligations towards Seller pursuant to the Contract, even if it cannot be held responsible;
(b) Seller has become aware of circumstances which give it good reason to fear that Buyer will not, will not promptly or will not fully discharge its obligations;
(c) Buyer is declared bankrupt, is granted a moratorium or a guardianship order (or submits an application for the same), or in the event of (the preparation of a) pre-pack, dissolution, cessation or liquidation of its company;
(d) Seller is unable to comply adequately (in full or in part), either temporarily or permanently, as a result of one or more circumstances for which Seller cannot be held responsible. Seller is, in cases referred to under a, b and c, also entitled to demand immediate payment of amounts due.
16.2 Buyer relinquishes its right to invoke suspension, settlement and termination of the Contract.
Article 17 Prohibition of assignment
17.1 Neither party is permitted, without prior consent in writing from the other party, to assign rights and/or obligations under the Contract, on the understanding that the Seller is permitted to assign said rights and obligations in full or in part to one of its parent companies, subsidiaries or affiliated enterprises, or a third party that will take over all or a substantial proportion of the assets, or the commercial activities of the Seller associated with the Products. This provision has a proprietary effect and is similar in purport to Article 3:83 section 2 of the Dutch Civil Code.
Article 18 No waiver
18.1 If Seller fails at any time to enforce one or more provisions of the Terms and Conditions, this will not serve as a waiver of
the Seller’s right to take action and/or enforce said provisions, and the Seller’s rights will not be affected by a delay in the enforcement of said provisions or failure to enforce them.
Seller’s failure to exercise its rights with respect to Buyer’s failure to discharge its obligations shall not serve as a waiver with respect to all other, earlier or later cases of non- compliance.
Article 19 Intellectual property rights
19.1 Seller shall retain full title to all information and all intellectual and industrial property rights with respect to everything it supplies and/or develops during or prior to the Contract between Parties, including but not limited to price lists, reports, recommendations, samples, calculations, brochures, designs, sketches and drawings and production processes.
19.2 Buyer is not permitted to make use of brands, patents, utility models, trade names, domain names, work protected by copyright and/or databases belonging to Seller and/or the enterprises affiliated to it, without prior permission in writing.
Article 20 Disputes
20.1 The Contract and the legal relationship between Parties shall be governed by the law of the Netherlands. Parties shall endeavour to resolve any disputes together in consultation. If this fails, the Dutch court Den Haag is authorised to take cognizance of the dispute in the first instance and to resolve the dispute.
20.2 The United Nations Convention on Contracts for the International Sale of Goods is not applicable.