Biomedal and Biomedal Diagnostics General Conditions of Sale Terms and Conditions 2008-2009
- CONDITIONS OF CONTRACT
1.1 In these General Conditions of Sale (the Conditions) Seller means Biomedal S.L. (B-91045948), and its successors, assignees, subcontractors and agents; Buyer means any person, company or other legal entity, who orders or buys Goods and shall include his, her, its or their assignees, successors, executors and personal representatives; Goods means the products supplied or to be supplied by Seller to Buyer in terms of each individual Contract, including all replacements and renewals thereof.1.2 Each order from Buyer which is accepted by Seller shall constitute an individual legally binding contract between Seller and Buyer hereinafter referred to as the Contract.
2.1 The Contract shall be governed in all respects by these Conditions. Seller shall not be bound by any terms or conditions set out in any other order form, documents or correspondence of Buyer. These Conditions shall supersede and prevail over any other terms and conditions stipulated or referred to by Buyer, and no addition, alteration or substitution of these conditions will bind Seller or form part of any Contract, unless expressly accepted in writing by an authorized officer of Seller. No previous correspondence, writings (other than the writings incorporated herein by reference in Condition 10 below), fax, electronic or verbal communications between Buyer and Seller nor any promotional or sales literature regarding Goods (other than those expressly accepted in writing as part of the Contract by an authorized officer of Seller) shall form any part of or be incorporated into the Contract.2.2 Seller warrants that the Goods and any ancillary technical services shall be in accordance with agreed specifications (within accepted or stipulated tolerances); shall otherwise reasonably conform to any description given by Seller in writing and shall be of reasonably satisfactory quality.2.3 Seller warrants that Seller has good title to the Goods and will transfer such title as it may have in the Goods to Buyer.2.4 To the extent that any quotation given by Seller is based on Buyer’s specifications as given to Seller, Seller shall not be held liable or responsible for the lack of sufficiency, fitness for purpose or satisfactory quality in respect of Goods insofar as attributable to Buyer’s specifications.2.5 All other warranties in relation to the Goods and in relation to any technical services afforded to Buyer by Seller, whether express or implied are hereby excluded, except in so far as such warranties may not validly be excluded by any applicable regulation or statute.
3.1 The prices of the Goods are as intimated by Seller to Buyer and current at the date of Seller’s quotation but may be varied by Seller to take account of any increase in any costs or charges of production, storage or transport or of any levy or taxes or any currency fluctuation which may occur at any time before shipment; provided, however, that where Seller agrees to supply the Goods at a fixed price within a specified period, the Goods will be charged at such price if ordered and accepted for delivery within such period.3.2 No quotations given by Seller shall constitute an offer open for acceptance by Buyer. The Goods are offered subject to availability.3.3 Unless otherwise agreed in writing, all prices quoted include standard delivery. If applicable, Seller shall be entitled to add the following to
the price quoted: (i) Value Added Tax; (ii) the cost to Seller of carrying out any special test, examination, inspection or process required to be carried out on the Goods; (iii) all other duties, taxes and levies of whatever nature; and (iv) Freight (Shipping) charges. The quoted price plus the other sums (insofar as applicable) in (i) to (iv) shall be the Price for the purposes of other conditions hereof.3.4 Return of products. Before returning products, contact Customer Services (firstname.lastname@example.org) for a Return Material Authorization and shipping instructions. Goods ordered in error are subject to a 15% administration fee plus freight charge.
4.1 Without prejudice to the passing of property in and title to the Goods, delivery of the Goods shall take place when the Goods are delivered by seller into the possession of the carrier at which point risk in the Goods shall pass.4.2 The Goods must be examined and signed for by Buyer at the time of passing to Buyer’s possession or control or at the earliest opportunity thereafter. Seller shall assist Buyer in pursuing any claim made against the carrier. No claims by Buyer in respect of damage to, shortage or loss of some or all of the Goods in transit prior to delivery shall be made unless notice in writing of such damage, shortage or loss on delivery is given to Seller and the carrier within 48 hours of their arrival at Buyer’s premises or eventual place where Buyer takes control or possession of the Goods as stipulated in the order. Buyer accepts that this allows a reasonable period to allow such inspection.
- DELAY IN DELIVERY
5.1 Any time or date for delivery given by Seller to Buyer is Seller’s estimate of the date on which the Goods will be delivered to Buyer, and Seller will make every reasonable endeavor to meet such delivery date, but time shall not be of the essence with regard to delivery at such time or date. Seller shall not be liable (in contract, delict, tort or otherwise howsoever) in respect of any liability, loss, expense, claim or damage incurred by Buyer arising from any reasonable delay in delivery of the Goods or any part thereof or any delay due to circumstances beyond Seller’s control (as described in Condition 11.2) and in no event shall Seller be so liable for any special, indirect, consequential damage or economic loss including, without prejudice to the foregoing generality, loss of profit, arising from any delay in delivery, howsoever caused.5.2 Seller shall be entitled to deliver the Goods by installments and in such case each installment shall constitute a separate contract and any failure in delivery of any one or more installments shall not entitle Buyer to repudiate the Contract for the supply of a series of installments as a whole or to cancel any subsequent installment. In times of shortage of availability of the Goods, Seller shall be entitled to allocate supplies as it sees fit without being in breach of the Contract or incurring liability hereunder to Buyer.5.3 Buyer shall not be entitled to reject the Goods or part thereof by reason only of short delivery.
6.1 Unless otherwise agreed by the parties, payment of the Price of each consignment of the Goods shall be made by Buyer within 30 days of the date of the invoice issued in respect of such consignment (Due Date), and time shall, in respect of payment, be of the essence of the Contract.6.2 Payment shall be by any method agreed and in any currency stipulated by Seller from time to time. Standing orders may be established to maintain shipping in accordance with Buyer’s specific needs and instruction. Any changes or cancellation in standing orders require to be intimated to Seller 14 days prior to scheduled dispatch date of the Goods.6.3 Seller shall be entitled without prejudice to any other of its rights to charge interest on all sums which may at any time be overdue for payment by Buyer to Seller in terms of the Contract (from the time such sums become due for payment until such sums have been paid to Seller in full) at the rate of 1% for each month or fraction thereof or the maximum interest allowed by law, whichever is lower. Such interest shall be paid by Buyer on demand by Seller.6.4 Payments may not be withheld or set off for any reason without Seller’s consent, and Seller may sue for the Pr ice of the Goods and any other sums due even if title and property to the Goods have not passed to Buyer.6.5 Seller reserves the right at any time to withdraw or vary credit terms in respect of further new consignments without explanation.6.6 Without prejudice to any other rights of Seller, failure to make payment of the Price on the Due Date shall entitled Seller to suspend any outstanding deliveries in respect of any Contract until payment is made and Seller may treat such outstanding order as repudiated if Buyer fails within 14 days to rectify any failure to pay.
- PASSING OF PROPERTY
7.1 Property and title in the Goods delivered to Buyer shall not pass to Buyer until the Price for the Goods has been received by Seller. Where the Goods to be supplied in terms of a Contract are supplied by part deliveries this Condition will apply to each part delivery as if it formed the subject matter of a separate and independent contract. Until the Price has been received by Seller, Buyer will hold and store the Goods at Buyer’s risk as agent for Seller and in a manner which clearly distinguishes them from other Goods of Buyer and indicates that they are the property of Seller.7.2 In the event that: (i) on the expiry of any credit period Seller shall not have received payment in full for the Goods; or (ii)a Receiver (including an Administrative Receiver) is appointed over the whole or any part of the assets of Buyer; or (iii) a Resolution is passed or a petition is presented for winding up of Buyer or any part of its assets or a provisional liquidator is appointed to Buyer; or (iv) an administration order in relation to Buyer is applied for under the provision of Part II of the Insolvency Act 1986; or (v) Buyer commits an act of bankruptcy or becomes apparently insolvent; Seller and its agents shall be entitled to enter the Buyer’s premises to inspect the Goods and, at its own discretion, repossess the Goods which remain the property of Seller or require Buyer at Buyer’s expense to return them immediately to Seller, and, should Buyer fail to do so, Seller is irrevocably authorised by Buyer without notice to enter any premises occupied by Buyer, or any premises where the Goods are held by a third party to the order of Buyer, for the purpose of collecting and removing the Goods, and Buyer shall be responsible for (and shall, on demand reimburse Seller for) all Seller’s costs and expenses in connection with such collection and removal.7.3 Sub-Clause 7.1 and 7.2 of this Condition 7 shall each be construed and receive effect and shall be enforceable as a separate Condition of these Conditions.
- LIABILITY FOR DEFECTS; INDEMNITY
8.1 Without prejudice to Condition 4.2, where any of the Goods supplied by Seller to Buyer are claimed by Buyer to be defective in material or workmanship or not to conform to the agreed or stipulated specifications, Buyer shall notify Seller in writing of such defect or non-conformity without delay following discovery of the defect or non-conformity, and Buyer shall give to Seller full opportunity to inspect and test such Goods. Should such Goods be shown to the reasonable satisfaction of Seller to have been defective at the time of delivery to Buyer, Seller shall at its sole option either repair or replace such Goods or (if the Goods shall have been paid for in full) refund to Buyer the price thereof, but in no circumstances whatsoever, subject to any regulatory or statutory provision from time to time in force and subject to the further Conditions below, shall the liability of Seller in connection with any such Goods exceed the cost of replacement thereof or the price paid or agreed to be paid by Buyer therefore.8.2 Seller shall not be liable for any claims, losses, liabilities, expenses or damages arising from any defects in the Goods which defects occur as a result of or are reasonably attributable to: (i) improper use of the Goods or use for purposes which are not expressly indicated by Seller in writing as suitable for such Goods or, without limitation, use or supply in breach of Condition 10 hereof; (ii) negligence on the part of any person other than Seller; (iii) improper storage or treatment of the Goods or any part of the Goods by Buyer or any subsequent user or use by Buyer or any subsequent user of the Goods which are retained after expiry of the shelf life recommended by Seller; (iv) loss or theft of the whole or any part of the Goods.8.3 SUBJECT TO CONDITION 8.2, SELLER SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY LOSS OR DAMAGE, INCLUDING LOSS OF PROFIT, BUSINESS, CONTRACTS OR GOODWILL, WHETHER NOTICE OF THE LIKELIHOOD OF SUCH DAMAGE IS GIVEN TO SELLER AND WHETHER ARISING, WITHOUT LIMITATION, THROUGH BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT, WARRANTY, OR STATUTORY DUTY, HOWSOEVER ARISING, WHICH BUYER MAY SUSTAIN IN CONNECTION WITH THE GOODS SUPPLIED OR TO BE SUPPLIED UNDER THE CONTRACT.8.4 Buyer agrees that Buyer has satisfied itself as to the suitability of the Goods for the purpose or purposes for which Buyer requires them or for which Buyer supplies them to customers. Seller has no responsibility for any losses, claims, expenses, liabilities, damages or other consequences of use by Buyer or any person receiving the Goods from or through Buyer for purposes for which the Goods are not expressly marketed or labeled by Seller as appropriate. Buyer shall indemnify, defend, and hold harmless Seller, its affiliates, its distributors, and the directors, officers, employees and agents of each such entity (together, the Indemnified Persons) from and against all claims, liabilities, losses, expenses (including without limitation reasonable attorneys’ fees and other legal costs and expenses) or damages incurred by the Indemnified Persons which result directly or indirectly from: (i) use of the Goods or supply of the Goods by Buyer to any third party for uses not expressly authorised in writing by Seller; (ii) breach by Buyer of its obligations and/or warranties in Condition 10 hereof; (iii) use or resale of the Goods by Buyer in a manner that infringes or is claimed to infringe the Intellectual Property (as defined in Condition 9) rights of any third party; or (iv) manufacture or sale of the Goods by Seller in a manner that infringes or is claimed to infringe the Intellectual Property rights of any third party to the extent resulting from any specification or instruction furnished by Buyer. Nothing in this Condition 8.4 shall be construed as granting any rights in addition to or contrary to the Authorized Uses statement set forth in Condition 10 below.8.5 Nothing in these Conditions shall limit or exclude Seller’s liability for personal injury or death resulting from any negligence of Seller or its employees or which may be established as resulting from a proven defect in the Goods.8.6 The Seller shall not be liable or responsible for a failure by the Buyer to abide by any administrative or regulatory requirements for use or sale of the Goods in the country in which Goods are destined for such use or sale.
- INTELLECTUAL PROPERTY RIGHTS
9.1 Seller warrants to Buyer that the manufacture and sale by Seller of Goods manufactured by or for Seller without reliance upon instructions, specifications, or other directions provided by Buyer and delivered hereunder will not infringe the claims of any patent, trademark or copyright (Intellectual Property) of any third party. Seller does not warrant that the manufacture and sale by Seller of Goods manufactured in reliance upon instructions, specifications, or other directions provided by Buyer or Buyer’s use or resale of Goods delivered hereunder will not infringe the claims of any Intellectual Property of any third party.9.2 Should any claim be made against Buyer for infringement of Intellectual Property rights arising from the manufacture or sale of Goods by Seller in circumstances in which the manufacture of such Goods was not based upon instructions, specifications, or other directions provided by Buyer, Seller shall conduct any ensuing litigation and all negotiation for settlement of such claims and will bear the costs of any payment made in settlement or resulting from an award; provided that Buyer shall give Seller the earliest possible notice in writing of any such claim being made or action threatened or brought against it, shall make no admission of liability or take any other action in connection with such matter and shall permit Seller to have conduct of claim and shall (at Seller’s expense) give all reasonable information, cooperation and assistance to Seller (including without limitation lending its name to proceedings) in relation to the conduct of the claim.9.3 The provisions of Condition 9.2 shall not apply to any infringement caused by Seller’s having followed specifications or instructions furnished by Buyer or his agent or representative.9.4 The foregoing provisions shall be Seller’s entire liability to Buyer and Buyer’s sole and exclusive remedies against Seller in connection with claims based on or resulting from the infringement of Intellectual Property rights of any kind whatsoever of third parties.
- AUTHORIZED USES
10.1 The purchase of Goods only conveys to Buyer the non-transferable right for only the Buyer to use the quantity of Goods and components of Goods purchased in compliance with the applicable intended use statement, limited use statement or limited label license, if any, in Seller’s catalogues or on the label or other documentation accompanying the Goods (all such statements or licenses being incorporated herein by reference as if set forth herein in their entirety).10.2 Unless otherwise expressly indicated in Seller’s catalogues or on the Label or other documentation accompanying the Goods, the Goods are intended for in vitro laboratory purposes and, are not intended for use and are not to be used for any other purposes including, but not limited to, in vitro diagnostic purposes, ex vivo or in vivo therapeutic purposes, in foods, drugs or cosmetics of any kind, for consumption by or use in connection with or administration or application to humans or animals or for other unauthorized commercial purposes. Buyer acknowledges that the Goods have not been tested by or for Seller in relation to any such use unless expressly stated in Seller’s catalogues or on the label or other documentation accompanying the Goods. Without limiting the foregoing restrictions, Buyer warrants to Seller that should Buyer for any reason use or sell the Goods for any use other than in vitro laboratory purposes, Buyer shall conduct all necessary tests, and comply with all regulatory requirements in the territory in question and shall issue all appropriate warnings and information to subsequent purchasers and/or users.
- CONFIDENTIALITY, FORCE MAJEURE, WAIVER AND SEVERABILITY
11.1 Seller and Buyer shall keep confidential and shall not without prior consent in writing of the other disclose to any third party any technical or commercial information acquired from the other as a result of discussions, negotiations and other communications between them in relation to the Goods.11.2 Seller shall not be responsible or liable in any manner whatsoever for any loss or damage whether direct, indirect or consequential, arising from any delay or default in the performance of any of Seller’s obligations in terms of Contract where such delay or default arises as a result of any circumstances or conditions beyond the control of Seller including (but without prejudice to the generality of the foregoing) war, industrial dispute, strike, lockout, riot, malicious damage, fire, storm, flood, act of God, accident, non-availability or shortage of material or labor, failure by any sub-contractor or supplier to perform, failure of production equipment, any statute, rule, bylaw, order, regulation or requisition made or issued by any government department, local or other duly constituted authority.11.3 No relaxation, delay or waiver by Seller of its rights in respect of any breach of obligation of Buyer pursuant to this Contract shall constitute a waiver of any other rights in respect of any prior or subsequent breach or obligation.11.4 The invalidity in whole or in part of any of these Conditions shall not affect the validity of any other provision.11.5 Each of these Conditions shall be separate and severable and shall be enforceable accordingly.
Any notice required to be given, shall be deemed to have been served 48 hours after time of posting if sent by first class or prepaid post or at the time of delivery, if delivered by hand or sent by fax or e-mail.
- GOVERNING LAW AND VENUE
These Conditions and any other provisions which constitute a Contract between the parties in relation to the supply of Goods shall be governed by and construed in all respects in accordance with the Law of Spain. The parties hereby submit to the exclusive jurisdiction of the Spanish Courts for the determination of any question or dispute between them, but this provision shall not prevent Seller’s taking any action to enforce its rights hereunder in any court of competent jurisdiction.
Avda Américo Vespucio 5E, 1ª, M12
(Last revised, 01.01.2008)