The following terms and conditions of sale, as the same may be amended by
Medichem, S.A. and its affiliates (“Medichem”) from time to time at its sole
discretion (the “Medichem Standard Terms and Conditions of Sale”), shall apply to
all sales of products (“Product”) to purchasers (“Purchaser”) arising out of
purchase orders (“Purchase Order”) issued by Purchaser and confirmed by
Medichem.
Each Purchase Order by a Purchaser shall be deemed an acknowledgement and
acceptance by Purchaser of the Medichem Standard Terms and Conditions of
Sale then in effect, as the same relate to such Purchase Order and Purchaser’s
agreement to comply with such terms. The terms and conditions set forth herein
are hereby incorporated to any and all Purchase Order confirmation issued by
Medichem and can also be found at www.medichem.es
- Obligations of Medichem
1.1. Price. Purchase Orders shall be invoiced at the prices in effect at the time
the Purchase Order is received by Medichem.
1.2. Shipment. Medichem shall ship the Products ordered to the address
specified in the Purchase Order according, unless otherwise indicated in the
Purchase Order confirmation, to the Incoterm set forth in the same and in
accordance with and subject to the Medichem Standard Terms and
Conditions of Sale.
1.3. Passing of Title and Risk of Loss. Risk of loss for Product delivered to
Purchaser will pass when delivered according to the Incoterm set forth in the
Purchase Order. Medichem will not be responsible for loss of, damage to, or
delay with respect to such Product after delivery. Title of the Product shall
pass to Purchaser on payment in full.
1.4. Warranty. Medichem warrants to Purchaser that the Product shall conform to
Medichem’s specifications or any applicable compendial specifications
(included but not limited to US or European Pharmacopeia) and Medichem
standard operating procedures, where applicable. THIS WARRANTY IS IN
LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. ALL
OTHER WARRANTIES INCLUDED BUT NOT LIMITED TO THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, ARE EXPRESSLY DISCLAIMED.
1.5. Replacement of defective Product. Purchaser shall inspect the Product upon
delivery and shall report any defects to Medichem within fifteen (15) days of
delivery of the Product. In case of a justifiable claim for such defects in any
Product, Medichem shall without charge replace the defective Product. If
Medichem disputes Purchaser’s reject of Product and the parties fail to
reach an agreement within thirty (30) days after Purchaser’s report to
Medichem, the dispute shall be determined by an independent laboratory
(who shall act as expert and not as arbitrator) mutually selected by the
parties. The decision of such independent laboratory following analysis of
the allegedly defective Product shall be final and binding upon the parties.
The cost of the analysis shall be borne by the party whose analysis was in
error. The remedies under this section 1.5 shall be the sole remedies
Purchaser may have regarding supply of Product by Medichem. - Obligations of Purchaser
2.1. Payment. Payment terms shall be those stated in the Purchase Order
confirmation. Payment shall be made by wire transfer to the bank account
specified by Medichem (unless otherwise indicated by Medichem) and shall
be made in full, without deduction of bank charges, commissions or of any
other item.
2.2. Proper Handling and Storage. Purchaser shall handle and store Medichem’s
Products complying with any applicable law and/or regulations, in a manner
that will assure that the proper conditions and quality of such Products are
maintained. For Products requiring unique or special handling and storage,
Purchaser shall comply with Medichem’s instructions specifically
communicated about the Product. Purchaser shall allow Medichem to
conduct a physical inspection of Purchaser’s storage facilities at any time
Medichem requests during normal hours of business.
2.3. Confidentiality.. Purchaser agrees that all details made available hereunder
and the Medichem’s Standard Terms and Conditions of Sale are confidential
information of Medichem. Such information shall be kept in strict confidence
by the Purchaser and shall not be used by Purchaser or disclosed to any
third party without the express written consent of Medichem. Failure to
comply with this provision shall be deemed a material breach of the terms
and conditions hereunder and shall entitle Medichem to cancel deliveries of
any Purchase Order issued by Purchaser, without limiting any of the other
rights and remedies available to Medichem at law or in equity, including
without limitation the right to seek an injunction to prohibit disclosure of
Medichem’s confidential information.
2.4. Intellectual Property Rights. Purchaser shall satisfy itself that the Product
does not infringe any patents or other proprietary rights of any third party,
and shall indemnify Medichem against all liabilities, claims, demands,
losses, costs or expenses (including reasonable legal fees and expenses)
suffered by Medichem as a result of any claim for infringement of any patent
or other proprietary right made by any third party. - General Provisions
3.1. Acceptance by Medichem. All Purchase Orders are subject to acceptance
and approval by Medichem. Any Purchase Order shall be accepted entirely
at the discretion of Medichem and Medichem reserves the right to accept
only part of any Purchase Order. Medichem shall decide at its own
discretion, depending on, but not limited to, availability and status of
regulatory issues, the manufacturing site, the raw materials providers and
the active ingredient used for each manufacture for the relevant Purchase
Order.
3.2. Dates of delivery. Any dates specified for delivery of the Products are
intended to be an estimate only and dates for delivery shall not be of
essence.
3.3. Construction. The Medichem Standard Terms and Conditions shall prevail
over any inconsistent or conflicting terms in any Purchase order; provided
that, if Purchaser is party to a supply agreement with Medichem when an
Purchase Order is placed and a provision in the supply agreement specified
by Purchaser for such order conflicts with a provision in the Medichem
Standard Terms and Conditions, then the provision in the supply agreement
shall prevail over the conflicting provision in the Medichem Standard Terms
and Conditions with respect to such Purchase Order.
3.4. Entire Agreement. The Purchase Order together with the confirmation
issued by Medichem and the Medichem Standard Terms and Conditions of
Sale constitute the entire agreement between the parties (“Agreement”) and
supersedes all previous communications between them in connection with
the sale of Product.
3.5. Force Majeure. Neither Medichem nor Purchaser shall be liable to the other
for failing to do as agreed where such failure, except the obligation of
payment of money, is the result of a Force Majeure. “Force Majeure” shall
mean a cause beyond the control of the party seeking to rely on the
existence of a force majeure, including war, civil commotion, destruction of
production facilities or materials by fire, earthquake or storm, labour
disturbances, epidemic and failure of public utilities or common carriers,
strikes, lack of raw materials, or failure of supply of raw materials.
3.6. No partnership. Nothing in this Agreement shall create or be deemed to
create a partnership, agency or joint venture between the parties.
3.7. No License of Intellectual Property Rights. Nothing in this Agreement or the
conditions of sale of product to Purchaser shall be construed as granting or
implying the grant of any license under any patent or trademark rights or any
other intellectual property rights held by Medichem or any of its affiliates
anywhere in the world, and Medichem shall be entitled to exercise such
patent or trademark rights and/or other intellectual property rights to the
fullest extent legally permissible at the time of such exercise.
3.8. Amendments. Medichem may amend these terms and conditions at any
time and for any reason. Medichem shall endeavour to promptly notify
Purchaser of changes to these terms and conditions.
3.9. Law and Jurisdiction. The Agreement shall be governed by and construed in
accordance with the laws of Spain. Any dispute or difference of any kind
whatsoever arising between the parties hereto out of or in connection with
Medichem Standard Terms and Conditions of Sale and any Purchase Order
or contract entered thereto shall be submitted to the exclusive jurisdiction of
the Courts of Barcelona, and the parties waive all objections to jurisdiction or
venue in Barcelona, renouncing expressly to any other competent
jurisdiction. - Compliance. Medichem has a Code of Conduct detailing the values,
principles and ethical standards that guide our activities and decisions, as
well as how our company develops business relationships with
Purchasers and other business partners. At Medichem, we are firmly
committed to the values and principles of our Code of Conduct, which
include strict compliance with applicable laws, respect for the environment
and respect for international proclaimed human rights. We at Medichem
undertake initiatives to promote greater environmental responsibility and
encourage the use of environmentally friendly technologies. It is our
expectation that any supplier providing products or services to Medichem
and any Purchaser or business partner will have an effective
environmental policy and comply with existing legislation and regulations
regarding the protection of the environment, adhere to the UN
International Labour Standards and respect the protection of
internationally proclaimed human rights. We consider the preceding as
essential to build ethical, transparent and trustworthy business
relationships.