General Conditions of Sale of Products
Last updated: October 10, 2019
1. These general conditions (the “General Conditions”) shall apply on all sales of products (the “Product(s)”) made by Neobiomics AB, corp. reg. no. 559072-2186, or as the case may be, companies from the same company group (”Neobiomics”) to the purchaser of the Products (the “Purchaser”).
2. Modifications and amendments to these General Conditions shall not bind Neobiomics unless made in writing and agreed to by the parties.
3. The Purchaser’s general conditions or similar provisions do not apply to the order made between the Purchaser and Neobiomics, unless the use of the Purchaser’s conditions has explicitly been agreed between the parties.
4. By placing an order of the Products, the Purchaser agrees that these General Conditions will apply to the order, future orders as well as future legal relationships between Neobiomics and the Purchaser.
5. If a specific provision of these General Conditions is or becomes invalid, the remaining provisions shall remain valid. If a provision is invalid, the parties shall agree to a valid substitute provision that comes as close as possible to the invalid provision.
6. Variations from these General Conditions may be made by Neobiomics. Such variations will be in effect upon the notification to the Purchaser.
CONCLUSION OF CONTRACTS
7. A contract between the parties is concluded by Neobiomics’ written confirmation of the Purchaser’s order. For clarity: a valid confirmation may be made by e-mail. All orders are accepted by Neobiomics subject to these General Conditions and these General Conditions shall therefore form part of all contracts relating to the purchase of the Products from Neobiomics.
8. All information and data contained in general Product documentation and price lists, whether in electronic or any other form, are binding only to the extent they are expressly included in the contract by reference.
PRICE AND PAYMENT
9. Unless otherwise agreed to in writing, orders accepted by Neobiomics will be invoiced at the price confirmed in writing by Neobiomics to the Purchaser.
10. If the price has not been fixed in the contract, the Purchaser shall pay the amount stated in Neobiomics’ general pricelist. Neobiomics has the right to revise and change its general pricelist at any time.
11. The price does not include value-added tax (VAT). Any shipping expenses, customs, duties and charges levied on the sale of the Products shall be borne by the Purchaser, unless otherwise specifically agreed to.
12. If (i) a definite price has been agreed to and (ii) an export- or import charge, tax or other similar surcharge is imposed or changed for the Products after the conclusion of the contract, Neobiomics reserves the right to change the price accordingly to cover such charge.
13. The Purchaser shall make full payment of any amounts invoiced to the Purchaser for Products (including freight, taxes or other relevant costs) within thirty (30) days following the date of invoice. An interest rate of two (2) percent per month shall apply to any amount not paid on or before such payment date. Neobiomics may further charge an administration fee according to law, for each non-payment reminder sent to the Purchaser.
14. The Purchaser shall not be entitled to withhold or set-off payment for Products delivered for any reason whatsoever.
15. If there are reasonable grounds for assuming that the Purchaser will not fulfill its obligations to make payment, Neobiomics has the right to demand that the Purchaser lodge an acceptable security (irrevocable letter of credit or a bank guarantee or other reasonable security).
16. Without in any way prejudicing any of its right under the contract, Neobiomics may withhold further deliveries of Products or other agreed performance until the Purchaser has remedied its default in full.
RESERVATION OF TITLE
17. The Products remain the property of Neobiomics until paid in full by the Purchaser.
TERMS OF DELIVERY
18. The terms of delivery shall be Ex Works (Incoterms 2010) Ipsana Pharma GmbH, Logistics Center Wels, Magazinstrasse 18, 4600 Wels, Austria, or such other facility that Neobiomics may direct.
19. If Neobiomics assists the Purchaser in arranging and/or prepaying freight and insurances, such costs may be invoiced by Neobiomics to the Purchaser.
TIME OF DELIVERY AND DELAY
20. Neobiomics shall use reasonable endeavours to deliver the Products in accordance with the delivery dates as set out in its order confirmation. Partial deliveries shall be permitted unless otherwise agreed. However, late deliveries or non-delivery are no basis for any claims against Neobiomics, and the Purchaser hereby waives all rights to make claims for liability based thereon.
USE OF PRODUCTS
21. Purchaser may only use the Products in accordance with the intended purpose of the Product.
22. Furthermore, Purchaser may only use the Products in accordance with the provisions of these General Conditions, the order confirmation, and Neobiomics’ other instructions to Purchaser, from time to time.
23. Neobiomics warrants that the Product(s) sold to the Purchaser, when delivered, conform to the Product specification, when applicable, and otherwise are free from any deficiencies in material or workmanship (the “Warranty”).
24. Neobiomics’ liability under the Warranty only covers defects arising during the Warranty period as defined below. The Warranty period for consumables shall begin on the date the Product is delivered to the Purchaser and shall continue until the expiry date (“shelf life”) of the Product.
25. and the Warranty does not extend to defects arising from improper use of the Product, including but not limited to, negligent handling, and failure to observe the instructions for use accompanying the Product.
26. Neobiomics’ sole liability under the Warranty shall be, at Neobiomics’ own expense, to replace, redeliver or by jointly agreed price reduction remedy any defects in accordance with the Warranty of the Product.
27. In order to exercise its rights under the Warranty, the Purchaser must notify Neobiomics in writing of any defect in accordance with the following: (a) within seven (7) days from the date of the delivery, if the defect should have been discovered during the Purchaser’s inspection of the Product, (b) in other cases, without undue delay after the discovery of the defect and under no circumstances later than two (2) weeks after the expiry of the Warranty period set out in Section 24. The notice shall contain a description of the defect.
28. If the Purchaser requests to exercise its rights under the Warranty, and Neobiomics determines that there is no defect covered by the Warranty, the Purchaser shall pay or reimburse Neobiomics for all costs Neobiomics has incurred by investigating and responding to the Purchaser’s request.
29. After Neobiomics has received written notification of a defect in accordance with Section 27, Neobiomics shall remedy the defect with the urgency that the circumstances require.
30. These clauses 23–29 are the sole and exclusive Warranty given by Neobiomics to the Purchaser with respect to the Products. There are no other warranties, express or implied, arising by operation of law or otherwise, including, but not limited to, any implied warranties for freedom for infringement, merchantability or fitness for a particular purpose, and the Purchaser waives all rights to any such claims against Neobiomics.
31. “Intellectual Property” means all right, title and interest in and to any intellectual property, including, without limitation, ownership and other rights to copyright, patent, concept, layout, rights relating to design, trade names, trademarks, methods, inventions, ideas, processes, tools and know-how, as well as the right to apply for formal protection or otherwise enhanced protection for any such right.
32. All Intellectual Property relating to the Products (whether registered or not) or other property and information provided by Neobiomics or on behalf of Neobiomics are and shall remain the property of Neobiomics. All Intellectual Property and goodwill relating to Neobiomics’ trademarks, logotypes and other distinctive marks (if any) arising from the use thereof by Purchaser shall inure solely to the benefit of Neobiomics. Nothing in these General Conditions shall be construed as a grant, assignment or transfer of any Intellectual Property with respect to the Products or any of the Intellectual Property therein or relating thereto. The Purchaser expressly undertakes not to decompile, reverse-engineer, modify, disassemble, recreate, generate or otherwise attempt to analyse the formula, composition, ingredients or any other aspect of any of the Products.
33. The Purchaser has no right to use or register (or assist anyone to use or register) any trade mark, product name or trade name (including domain names) which is identical or confusingly similar to Neobiomics’ trademarks, product names or trade names (including domain names) without Neobiomics’ prior written consent.
LIMITATION ON LIABILITY
34. The aggregate liability of Neobiomics, howsoever arising, shall be limited to twenty (20) percent of the purchase price under the contract for the Product. Neobiomics shall not be liable for any indirect damage, such as loss of production, lost profits, cost of procurement of substitute goods by the Purchaser and/or its customers, loss of information and data, business interruption, cost of capital or other economic consequential loss regardless of type, whether foreseeable or not.
35. Neobiomics shall not be liable for any delay or failure in carrying out its obligations under the contract, which is caused wholly or partly by circumstances outside of Neobiomics’ reasonable control, such as delay in transportation, fire, labor disputes, accidents, delay in customs procedure, change of law or regulation, government actions, or other similar events, or defects or delays in deliveries by sub-suppliers.
GOVERNING LAW AND DISPUTE RESOLUTION
36. Contracts covered by these General Conditions shall be governed by and construed under the substantive laws of Sweden, without any reference to its conflict of law principles. The United Nations Convention on contracts for the International Sale of Goods (CISG) shall not apply to any of the orders placed.
37. Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be settled through legal proceedings in Swedish courts, with Stockholms Tingsrätt as court of first instance.
38. Notwithstanding the above, Neobiomics reserves the right to, free of its own choice, initiate court proceedings in competent court in the country of which the Purchaser has its place of business.