GENERAL TERMS OF SALES (GTS) (October 18, 2017)
For the sake of clarity, “seller”, “us”, “we”, “our” and similar forms are references to C-squared PHARMA S.à r.l. located at 270 rue de Neudorf, L-2222 Luxembourg, Grand Duchy of Luxembourg.
1. General issues – scope of application
(1) Our deliveries are exclusively subject to our general terms of sale (GTS). Opposite or diverging terms of purchase or general terms and conditions will not be accepted by us, even if known or written, unless we have expressly given our written consent in a particular case.
(2) The latest version of the International Commercial Terms (Incoterms) apply at any given time.
(1) All our offers are subject to alteration with respect to price, quantity, delivery period and ability to deliver.
(2) Orders of the buyer are only binding if and when confirmed by us in writing through the issuance of an order confirmation (OC) document. This can also be performed in writing by the issuance of an invoice. E-mail is under no circumstances to be considered as a binding OC. Any additions, amendments and alterations to OC also require a written confirmation by us. Under no circumstance can an order be considered confirmed by us implicitly, for instance either through verbal conversation or by our omission to respond.
3. Delivery, impediments to delivery and provisos
(1) Goods we sell are manufactured by third-party organizations. In the event those organizations do not supply us with the appropriate amount of goods or are delayed in their supply, such delays, reduced or lack of deliveries shall not constitute a failure to supply by us. We are also not liable towards the buyer for any claims, reparations or liabilities of any kind in such situations, even if we have issued an OC. Moreover, should our OCs include a delivery date, those are always non-binding estimates and are conditional on our third-party manufacturing organizations delivering the goods on-time. Should the goods not be available but already paid by the buyer, we retain the option of reimbursing the paid amount less our costs for logistics (if any).
(2) We are entitled to make partial deliveries of orders.
4. Risk Transfer
(1) The risk of loss and/or damages and/or destruction related to the goods is transferred to the buyer Ex Works (at a place determined by the seller) according to the Incoterms, unless otherwise specified in the OC.
(2) This risk transfer remains valid even if the buyer has not accepted or is delayed in accepting the goods.
(1) Our prices are those valid at the time of delivery and do not include V.A.T. (or similar other taxes) as may be applicable nor any other costs or charges which shall be borne by the buyer unless and to the extent specified otherwise in the OC.
(2) The ascertainment of the weight or quantity significant for the calculation will be performed at the place of dispatch.
6. Payment and delay in payment
In the event no specific payment terms are agreed, invoices are payable within 30 days after the date of invoice without any deduction. If the term of payment is exceeded, interest of 1 per cent per month will be charged. We reserve the right to assert further claims. V.A.T. (or other taxes) is also payable on deposits or advance payments.
7. Receipt of payment – fulfillment
Payments are considered to have been carried out when the amount is finally deposited on our bank account as indicated in our invoice.
8. Right to set-off and retention
The buyer may only set its claims off against our claims, if these are undisputed or already decided in a non-appealable way by us. For the remaining claims, the buyer’s right to set-off and retention is excluded.
9. Delivery period
Without prejudice to section 3(1) a fixed or nonfixed delivery period may be agreed. Fixed delivery dates require an explicit written agreement.
10. Scope of Delivery
Regulatory documents (drug master file, certificate of suitability, method of analysis, synthesis flow chart, stability data, impurity profiles, etc.) are not included in the delivery.
11. Force majeure
Both parties are discharged from their mutual obligations in cases of force majeure for the duration and extent of the respective event. If, as a result of such an event, the delivery terms are exceeded by more than 24 weeks, both parties have the right to withdraw from the contract.
12. Packaging, shipment and re-labeling
(1) We will provide packaging in compliance with the “Good Distribution Practice” (GDP).
(2) Shipment will be made in compliance with GDP. We reserve the right to choose the route and mode of dispatch, if not otherwise specified in the OC. The buyer shall carry all costs and charges as set out in section 5(1). The buyer shall in particular carry all supplementary costs caused by any kind of special requests on its part. This also applies for increases of freight charges coming into effect after the conclusion of a contract, supplementary costs for re-routing, transport, insurance, storage charges, customs and duty charges and any other related costs and charges. The buyer shall be in charge of compliance with all regulations and formalities on export, import and transit.
(3) The buyer agrees to re-label and/or repackage with express prior written approval only. This especially refers to the breaking of seals. When relabeling and/or repackaging, the buyer must fully comply with the guideline GDP. Furthermore, the buyer will be held solely liable for any damages and other consequences attributable to relabeling and/or repackaging procedures.
13. Retention of title
(1) The goods only pass into the ownership of the buyer when the buyer has complied with all its payment obligations regarding the business connection with the seller. The buyer empowers hereby the seller to unilaterally arrange for all necessary steps required (if any) for the validity of the retention of title, in particular the entry of the title into an official registry.
(2) The buyer shall be entitled to dispose of the goods supplied by us and still in our possession only in the context of a proper business transaction. Provided the buyer complies with its financial obligations towards us, the buyer shall be entitled to collect the claims arising from any resale. The buyer must not pledge or transfer for security purposes the goods being subject to retention of title. In the event of any resale of the goods being subject to retention of title in order to pay the purchase price, the buyer herewith assigns the resulting claims to us. We must be notified immediately in the event of any seizure or confiscation of the goods being subject to retention of title. We shall be entitled to demand the return of goods being subject to retention of title from the buyer if, despite a warning, the buyer fails to comply with its financial obligations towards us and we decide to withdraw from the contract.
(3) In the event of a delay in payment or circumstances giving rise to doubts about the buyer’s ability to pay we shall be entitled, regardless of the agreed payment dates, to demand immediate payment of all outstanding claims and to notice the assignment of claims in respect of the relevant debtor. After expiration of a reasonable period of grace set by us, we shall be entitled to demand the return of our goods at the expense of the buyer.
(4) If goods being subject to retention of title are processed by the buyer, our proprietary rights remain unaffected and will also cover the products resulting from the processing. If the goods being subject to our proprietary rights are processed, mixed or combined with goods being in the property of a third party, we acquire joint ownership of the products resulting therefrom in relation to the invoice value of the goods being subject to reservation of proprietary rights to the invoice value of the goods having been in the ownership of the third party. If the goods are mixed or combined with a main product of the buyer, he herewith assigns to us its property rights to the new product.
(5) If the value of the securities we are entitled to exceeds the claims which are to be secured by more than 10 per cent, we are obliged to release the excess securities if required by the buyer. The selection of the securities which are to be released is at our own discretion.
(1) Complaints concerning defects of our deliveries shall only be recognized if submitted in writing within 5 business days of receipt of the goods by the buyer. After this term the goods are deemed to have been accepted by the buyer. If complaints are justified and filed in good time and in compliance with section 14(2), the buyer’s remedies are limited to the supply of new goods. Any other remedy is excluded, in particular the right to recess the contract (“Wandelung”) or the right to request a reduction of the purchase price (“Minderung”). Any claim outside this period will not be accepted. The full burden of proof will be on the buyer filing the claim.
(2) When asking for the supply of new goods based on defects of our deliveries, the buyer must provide us with the goods in their original state and packing if and as far as possible.
(3) This guarantee is only valid for one year after the goods have been dispatched to the buyer or at the expiration of the goods, whatever comes first. This term cannot be extended by filing a legal claim or requesting enforcement by competent authorities (“Verwirkungsfrist”).
(4) Defects which are not attributable to us are excluded from this guarantee. Also, this guarantee cannot be asserted if the buyer processes or alters the goods, fails to comply with section 12(3) or the GDP, acts against instructions of the seller, changes any serial numbers or affects the traceability of the goods. It shall also expire if the buyer does not take promptly suitable measures in order to minimize the damage and enable us to remedy the defect.
(1) Every liability of the seller, without regard to the basis of the liability, including but not limited to a liability for loss of profit or consequential damages, is to the extent legally permitted expressly excluded. Any liability for auxiliary persons according to art 101 of the Swiss Code of Obligation is entirely excluded.
(2) Claims of the buyer arising from product liability legislation shall be limited to one time the value of the average annual purchase volume of the buyer over the past 36 months, but in any case no more than EUR 3 million.
16. Period of limitation
All claims of the buyer, irrespective of their legal basis and without any exclusion, shall lapse within 12 months of the dispatch from the seller. This term cannot be extended by filing a legal claim or requesting enforcement by competent authorities (“Verwirkungsfrist”).
17. Right of exchange – agreement
Goods supplied in the proper manner shall only be taken back or exchanged after prior written agreement. We reserve the right to destroy, without replacement, any goods returned unsolicited.
Quality inspections (audits) can only be effected with prior reasonable notice. We reserve the right of charging the customer with costs arising with the organization and realization of such an audit.
19. Severability clause
Should any provisions of these GTS be totally or partly invalid, this will not affect the validity of the remaining provisions. The parties undertake to replace the invalid provision by a valid provision that comes closest to its commercial purpose.
20. Invalidity of earlier terms
This current version of our GTS shall supersede and replace all previous GTS.
21. Place of performance
The place of performance is the place of the domicile of the seller unless otherwise agreed or indicated in these GTS.
22. Applicable law
All existing legal relations between the buyer and us shall be governed by Swiss substantive law. The law on the retention of title shall be subject to article 103 of the Swiss International Private Law. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) will not apply.
23. Place of venue
All disputes arising out of or in context with our goods and in particular under these GTS shall exclusively be settled by the competent court of the city of Zurich, Switzerland.