GENERAL TERMS AND CONDITIONS APPLICABLE TO THE SALE OF MENARINI DIAGNOSTICOS, S.A.’S PRODUCTS
One. The scope, object of the agreement. Definition.
In whatever the form of the agreement may be, whether an offer, estimate, order and/or request to acquire products (hereinafter referred to as the “Products”), between MENARINI DIAGNOSTICOS, S.A. and other companies or individuals (hereinafter referred to as the “Purchaser”), it shall be subject to these general contracting terms and conditions, which shall be the sole ones applicable, unless a written agreement is reached otherwise between the parties.
Therefore, the agreement shall consist of these contracting terms and conditions and the offer, estimate, order, purchase order or any other similar document signed between MENARINI DIAGNOSTICOS, S.A. and the purchaser.
Two. Validity and effectiveness of the agreement.
It shall be deemed that the agreement is valid and its formalities carried out as of the time the order or purchase order is accepted or, in a subsidiary manner, from the time the product is delivered.
Three. Term, place and means of delivering the products.
The Products shall be delivered as soon as possible, depending on the availability thereof and, in cases when a certain delivery term has been set, this term may be extended according to such availability.
In case of an extension, MENARINI DIAGNOSTICOS, S.A. must notify this to the Purchaser as soon as possible and if the latter does not accept the extension of the delivery term for a justified reason, it shall be entitled to cancel the order as a sole legal remedy for breach of contract by MENARINI DIAGNOSTICOS, S.A. with no right to claim any damages.
In any case, it shall be deemed that the Purchaser accepts the extension of the delivery term if it has not sent written notification to MENARINI DIAGNOSTICOS, S.A. cancelling the order within 24 hours after receiving notice of such extension.
The Products shall be delivered in the place specified in each case in the order, purchase order or similar document, unless the parties agree otherwise in writing.
The Purchaser undertakes that the place of delivery is appropriate and there are suitable facilities for receipt and storage of the Products as of the planned delivery date, guaranteeing that they are in accordance with applicable laws and regulations, including those related to health and safety, and it shall be responsible for obtaining all the required permits and licences. For such purpose, MENARINI DIAGNOSTICOS, S.A. may require the purchaser to provide justification that such requirements have been duly met.
c) Receipt of the order.
At the time of delivery, the Purchaser must carry out all the required reviews and inspections of the products received to check their correct condition and ensure that they are compliant and in accordance with the order, purchase order or similar document and the delivery note. Signing the latter shall be deemed as its full acceptance thereof.
d) Delivery risks.
If special work must be performed to deliver the Products, the Purchaser shall bear all the expenses and risks related to this relevant special work.
MENARINI DIAGNOSTICOS, S.A. shall not be held responsible for any failure or delay in delivery, directly or indirectly resulting from a situation of force majeure or due to any reason caused by the Purchaser.
The Purchaser shall accept all the risks for loading, unloading and transporting the Products from the time they are delivered thereto in the agreed place according to the provisions in section b) above.
The prices applicable to the agreement shall be those determined therein otherwise those in force at the time the orders, purchase orders or similar documents are accepted, excluding VAT, unless specified otherwise.
Five. Expenses incurred for transport, shipping, packaging, insurance and other sundry expenses
The transport costs, shipping, packaging, insurance expenses or any other kinds of costs or expenses incurred until the Products are received shall be borne by MENARINI DIAGNOSTICOS, S.A., providing the Purchaser has fulfilled the provisions in Clause Three, otherwise MENARINI DIAGNOSTICOS, S.A. shall notify the Purchaser of the new terms and conditions regarding the aforementioned costs and expenses. The Purchaser may accept them or cancel the order according to the provisions in section a) of Clause Three related to the extension of the delivery term.
a) Term and payment of default interest.
The payment must be made within the term accepted by the Parties in the agreement, otherwise 30 days after the date of invoice and, in the case of default in payment, default interest shall be charged by MENARINI DIAGNOSTICOS, S.A., with no need for any prior order, for the outstanding debt determined according to Act 3 of 29 December 2004, on measures to combat default in commercial transactions in force at the time the default interest must be paid.
b) Consequences in the case of default in payment.
Notwithstanding the provisions in the previous section, in the case of default in payment by the Purchaser, the other debts payable to MENARINI DIAGNOSTICOS, S.A. shall immediately become due and payable, with no need for any prior order, and suspension of the validity of the obligations that at such time must be fulfilled by MENARINI DIAGNOSTICOS, S.A. with the Purchaser shall not be deemed as breach of contract. Similarly, if there are any debts payable to the Purchaser, MENARINI DIAGNOSTICOS, S.A. shall be entitled to offset them with the amounts owed by the Purchaser.
Seven. Exceptional collection of the products.
In the case of a compulsory legal requirement of public order, public health etc., MENARINI DIAGNOSTICOS, S.A. may collect the Products from the Purchaser’s premises whenever this is required, without needing the Purchaser’s authorisation, which shall facilitate such work, notwithstanding the obligation of MENARINI DIAGNOSTICOS, S.A. to refund the consideration paid by the Purchaser for the Products collected.
Eight. Labelling and packaging.
Under no circumstances may the Purchaser change the labelling and packaging of the Products.
Any claim related to internal defects or other faults in the Products delivered that could not have been detected at the time of the inspection referred to in section c) of Clause Three must be notified by registered means to MENARINI DIAGNOSTICOS, S.A. within 48 hours after delivery. Once such term has elapsed, the Purchaser shall not be entitled to make any claim whatsoever.
In the case of any faults or defects in the Products duly acknowledged by MENARINI DIAGNOSTICOS, S.A. and claimed by the Purchaser within the term specified in the previous section, this shall imply an obligation for MENARINI DIAGNOSTICOS, S.A. to replace the faulty Products with no right for any other compensation for such reason.
MENARINI DIAGNOSTICOS, S.A. shall only be responsible for any infringement of applicable laws related to consumers and users to the extent that such infringement is directly caused thereby and shall therefore not be held responsible for any infringements committed by third parties not included in the agreement.
Ten. Suspension and termination of the agreement.
MENARINI DIAGNOSTICOS, S.A. may fully or partially suspend fulfilment of the agreement or terminate it by sending prior written notice to the Purchaser in the following cases, but shall not be entitled to obtain any compensation whatsoever for such reason:
- Breach of contract or defective fulfilment by the Purchaser of one or more of the obligations stipulated in the agreement.
- Sale or closure of the Purchaser’s business.
- Change in control of the Purchaser’s business.
- Withdrawal or suspension of a permit held by the Purchaser required for fulfilment of the agreement.
- Withdrawal or suspension of a permit held by MENARINI DIAGNOSTICOS, S.A. required for fulfilment of the agreement.
Eleven. Intellectual or industrial property rights
MENARINI DIAGNOSTICOS, S.A. reserves the intellectual or industrial property rights for its Products and trademarks and entering into the agreement shall not grant any kind of right or imply assignment thereof to the Purchaser.
In a correlative manner, MENARINI DIAGNOSTICOS, S.A. guarantees it holds sufficient legal standing to exercise the intellectual or industrial property rights for the Products, the Purchaser being held harmless for any claim related thereto, unless this is caused by breach of contract by the Purchaser.
The parties undertake to keep all the information (whether verbal, in writing or received by other means) confidential, which they may obtain within the scope of the agreement, a commitment that shall also be undertaken by the respective staff of each of the parties that have access to this information. Similarly, the parties undertake to return any document, even those in digital form, obtained by or in the name of the other party, providing it is not needed for the fulfilment of the agreement.
Thirteen. Obligations related to data protection.
Pursuant to the provisions in the Spanish Organic Data Protection Act 15 of 13 December 1999, both parties are informed that the personal data they provide due to carrying out the formalities for the agreement or those that may be provided during the contractual term will be processed and included in their relevant files in order to comply with the needs related to management for the correct fulfilment of that agreed, mutually holding each other liable for the truth and accuracy of the data provided and for notifying any subsequent changes, being allowed to exercise their rights to access, rectify, delete and oppose such data by sending written notification to the other party.
Fourteen. Assignment or subrogation.
MENARINI DIAGNOSTICOS, S.A. may assign or subrogate the rights and obligations contained in this agreement, including the credit rights with the Purchaser. However, the Purchaser may not partially or fully assign or subrogate any right or obligation stemming from the agreement, unless expressly accepted otherwise in writing.
If any of the clauses in the agreement are declared null and void, this shall not affect the other clauses, which shall remain fully in force, and the parties undertake to hold negotiations in good faith to replace the clause or clauses in the agreement that have been declared null and void.
Sixteen. Applicable law and jurisdiction.
The agreements shall be subject to Spanish law and, for any matter not expressly included therein, they shall be governed by the provisions in the Spanish Commercial Code, other laws governing the sector and commercial practices.
The parties agree to submit any dispute that may arise related to its interpretation, performance and fulfilment to the competent courts of the city of Barcelona (Spain).
All notices addressed to MENARINI DIAGNOSTICOS, S.A. shall be sent to Avda. del Maresme, number 120, 08918 in Badalona (Barcelona) Spain – Administration Department.
In Barcelona, March 31st 2015