Terms of business

 
issued by MEDICEM International GmbH, a company duly incorporated and existing under the laws of Switzerland, having its registered office at Baarerstrasse 8, 6300 Zug, Switzerland, Reg. No. 170.4.010.812-2 (the “Supplier”) and
 
applicable to all eligible persons who order Products from the Supplier and are not a party of a special long-term agreement with the Supplier 
 
Contract
 
By ordering of Products from the Supplier the ordering party (the “Purchaser”) agrees to be bound by these Terms of Business (the “Terms”) which form, together with a respective order, a legally binding and enforceable agreement between the Supplier and the Purchaser. The contract between the Supplier and the Purchaser shall arise by confirming of the order by the Supplier according to clause 2.1 letter b).
 
1. Definitions
 
Manufacturer” means MEDICEM Technology s.r.o. having its registered office at Kamenné Žehrovice, Karlovarská třída 20, Post Code 273 01, the Czech Republic, Company Id. No. (IČ) 480 36 374 being the manufacturer of the Products
"Price" means price payable by the Purchaser for the Products
 
Product(s)” mean(s) any products offered by the Supplier and ordered by the Purchaser according to clause 2.1
 
Party(ies)” mean(s) the Supplier and Purchaser together or individually
 
Warehouse Address” means Kamenné Žehrovice, Karlovarská třída 20, Post Code 273 01, the Czech Republic or any other address of the Manufacturer notified by the Supplier in writing
 
2. Order
 
2.1. The Supplier shall supply the Products to the Purchaser according to the order and the order will be deemed as duly made only on condition that:
 
a. the order was made in the form as requested on the web page of the Supplier http://www.dilapan.com/en/terms-of-business/ using a form provided to the Purchaser by the Supplier; and
 
b. the order will be confirmed by the Supplier through sending of an invoice to the Purchaser within thirty (30) days after the day of making the order.
 
3. Supply of the Products
 
3.1. The supply of the Products by the Supplier to the Purchaser will be on the basis of "FCA" (Free Carrier) from the Warehouse Address in accordance with “Incoterms 2000” published by the International Chamber of Commerce not later than ninety (90) days after confirmation of the order by the Supplier. Should relevant information be not included in the invoice sent according to clause 2.1. letter b) above, the Supplier will notify the Purchaser that the Products are ready for supply by a special five (5) days’ prior notice.
 
3.2. Without derogating from the obligations imposed by the preceding clause:
 
a. the Supplier shall arrange and bear all costs and risks involved in the loading of the Products on any collecting vehicle at the Warehouse Address; and
 
b. all risk of loss or damage to the Products shall pass to the Purchaser once the Products have been properly loaded on the collecting vehicle in accord with the preceding sub-clause.
 
3.3. Delivery of the Products by the Supplier to the Purchaser shall be deemed to have occurred upon completion by the Supplier of its obligations as described in clause 3.2 letter a) above.
 
3.4. Title to the Products shall pass to the Purchaser upon delivery according to clause 3.3 above.
 
4. Price, payment terms
 
4.1. The Purchaser shall pay the Price agreed by the Parties with respect to a particular order.
 
4.2. The Price is due and payable before despatch of the Products subject to receiving of relevant invoice by the Purchaser and according to the terms of payment stated in such an invoice.
 
5. Covenants of the Supplier
 
5.1. The Products will be supplied by the Supplier free from defects in materials and workmanship. The Supplier will promptly provide the Purchaser with the free-from-defects Product to replace any imperfect Product supplied.
 
5.2. The Products will always be marked with correct expiry date (end of shelf life) duly reflecting the date of production. The remaining shelf life shall never the shorter than 12 months at the date of delivery of Products to the Purchaser.
 
5.3. The Supplier will ensure regular quality testing to keep the Products always compliant with any applicable attestations and in order to keep safety and proper operation of the Products.
 
5.4. The Supplier shall indemnify and hold harmless the Purchaser against any action claim or demand of a third party including (but not limited to) the cost of defending or settling any action claim or demand which have been adjudicated against the Purchaser arising from breach of a representation or warranty given by the Supplier expressly in respect of the Products.
 
6. Covenants of the Purchaser
 
6.1. The Purchaser shall refer to the Supplier any inquiries for the Products received from its customers and will refer such customers to the Supplier.
 
6.2. The Purchaser is obliged to follow instructions of the Supplier relating to the Products, its specification, conditions of transportation, storage and use and is obliged to inform its customers about the same. The Purchaser must exert professional care during these activities. Further, the Purchaser must ensure the same degree of care is spent by any persons used by the Purchaser for distribution of the Products. The Purchaser shall indemnify and hold the Supplier and any third persons harmless for any damage (including but not limited to the cost of defending or settling any action claim or demand) arising from breach of this clause by the Purchaser (or any agent employee or sub-contractor of the Purchaser or any other person for whose acts or omissions the Purchaser is liable).
 
6.3. Within 24 hours, after learning about, the Purchaser will notify the Supplier and the Manufacturer on occurrence of any customer complaint, event and/or incident relating to the Products distributed. The requested form of the notice according to this clause (the “Complaint Notice”) is attached to these Terms. The responsibility to resolve the complaints is with the Supplier.
 
6.4. In case the Supplier or any competent authority resolves on withdrawal of any of the Products from the market, the Purchaser will, upon notification thereof, ensure such Product is withdrawn from its customers immediately and shipped back to the Supplier. The costs of shipping will be borne by the Supplier.
 
6.5. In case any competent authority or the Manufacturer resolves on any safety corrective action relating to the Products, the Purchaser will, upon notification thereof, ensure such action is performed immediately and any requested documents obtained.
 
6.6. The Purchaser shall maintain records on Product supplies to individual customers including (without limitation) information on identity of such customers. The Purchaser will keep the records for the whole life period of the Products (as specified in the Product-relating documentation) plus one (1) year. The Purchaser will provide the Supplier with the above reports on request.
 
6.7. The Purchaser will not make any changes of the Products. In the case that the local market conditions require specific changes of the Products (enclosed booklets, package), the Purchaser can make such changes only subject to prior written consent of the Supplier.
 
6.8. The Purchaser is authorised for distribution of the Products through eligible third persons on condition that (i) the terms of arrangements agreed between the Purchaser and such third parties will be mutatis mutandis to the terms agreed herein, (ii) that the obligations or responsibility of the Purchaser set by these Terms must not be limited in any way, that (iii) the third party will be authorised to distribute the Products only on condition that it complies with all requirements requested for distribution by the applicable laws and regulations and that (iv) such distribution does not harm rights of any third parties.
 
7. Liability for Damage, Force Majeure Circumstances
 
7.1. Each of the Parties shall be held liable for damage arising out of breach of their obligations set out herein or by applicable law. However, the damages payable by the Supplier will not, to the extent as allowed by applicable law, exceed the total amount of the Price received by the Supplier from the Purchaser in relation to the particular order the claim arises from. This limitation, however, does not apply to any damage caused intentionally or by gross negligence of the Supplier.
 
7.2. None of the Parties shall be held liable for damage resulting out of circumstances which could not be foreseen by that party when entering into the agreement according to these Terms, which are beyond the reasonable control of a party and which results in a party being unable to observe or perform obligations under this Agreement (“Force Majeure Circumstances”). Force Majeure Circumstances will include, without limitation: natural disasters, extensive and pending energy black-outs, extensive and pending failures of communication means and transportation, wars, riots, strikes, embargo, blockades and unexpected interventions from the public authorities.
 
8. Governing Law
 
These Terms and any agreement arising out of these Terms will be governed by the laws of Switzerland excluding Swiss Private International Law and international treaties; in particular the Vienna Convention on the International Sale of Goods dated 11 April 1980.
 
9. Disputes
 
Any dispute, controversy or claim arising out of or in relation to these Terms and any agreement arising under these Terms including the validity, invalidity, breach or termination thereof, shall be settled by arbitration in accordance with the Swiss Rules of International Arbitration of the Swiss Chambers of Commerce in force on the date when the Notice of Arbitration is submitted in accordance with these Rules. The number of arbitrators shall be three. The seat of the arbitration shall be in Zurich. The arbitral proceedings shall be conducted in English. The arbitration award will be final and binding on the Parties and the Parties waive all challenge of the award.
 
10. Notices and Communication
 
Any communication between the Supplier and the Purchaser will be made in writing: (i) if to the Supplier to the address stated on the web page of the Supplier http://www.dilapan.com/en/terms-of-business/, (ii) if to the Purchaser to the address stated in the latest order made according to clause 2.1 above. A notice will be deemed delivered (i) on the day when the delivery was confirmed or (ii) on a day when delivery was refused by the addressee or when the delivery was not completed due to inaction of the addressee. Any e-mail correspondence will be made only in the interest of more expeditious communication. However, each Party may rely on the contents of correspondence delivered via e-mail and is relieved from liability (and may in no respect be blamed or held at fault) for acting based on correspondence delivered via e-mail whose contents differ from the correspondence delivered by post or courier. Receipt of e-mail must always be confirmed by sending confirming e-mail from the recipient's e-mail account to the address of the sender.
 
11. Legal Successors and Assignment
 
11.1. Any agreement arising under these Terms shall be binding on any legal successors of the Parties.
 
11.2. Save as permitted by these Terms assignment of any rights arising out it or any agreement arising under these Terms is possible only subject to prior written consent of the other Party.
 
11.3. The Supplier is hereby authorised to assign its rights and claims arising out of these Terms or any agreement arising under these Terms to any entity which forms a concern with the Supplier. The Supplier is obliged to notify such assignment to the Purchaser.
 
12. Severability
 
Should any provision of these Terms be or become invalid, unenforceable, ineffective or illegal, such provision shall not in any manner affect or impair the validity, enforceability or effectiveness of any other provision.
 
In Zug, Switzerland, on 17 February 2014
 
Annex: Complaint Form
 

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