1.1 These General Terms and Conditions of Sale (“GTC”) govern the offering, sale and delivery of all goods (hereinafter jointly referred to as the “Product(s)”) from or on behalf of ALCHEM EUROPE SA, 6 Rue de Candolle, 1211 Geneva, Switzerland, and its affiliates (“ALCHEM”), to a customer (“Customer”) and apply to all transactions between ALCHEM and Customer.
1.2 Any amendments to the GTC are binding on ALCHEM if approved by ALCHEM in writing. Approved amendments are only effective with respect to the individual transaction for which they have been made and shall have no effect in future dealings.
1.3 The GTC shall supersede and exclude the application of any other terms and conditions, which may be written on or referred to in any request for quotation, order, order confirmation, payment slip or any other document in any technical form used by Customer in procuring or paying the Products. Failure by ALCHEM to object to terms and conditions referred to by Customer shall in no event be construed as an acceptance of any of the terms and conditions of Customer.
1.4 ALCHEM reserves the right to amend the GTC at any time. ALCHEM will notify Customer of any such amendments by referring to the applicable version of the GTC in its quotations or other communications and by sending the amended GTC to Customer upon request. The amended GTC will take effect on the date of first notification of these amendments and shall apply to all transactions concluded between Customer and ALCHEM after the date of such notification.
2. QUOTATIONS, ORDERS AND CONFIRMATION
2.1 Unless stated otherwise by ALCHEM in writing, quotations made by ALCHEM in whatever form are not binding on ALCHEM, but shall constitute an invitation to Customer to place an order. All quotations issued by ALCHEM are revocable and subject to change without notice.
2.2 Orders are not binding until accepted by ALCHEM in writing, including by means of electronic communications (a “Confirmed Order”). ALCHEM shall be entitled to refuse an order at its discretion.
3. PRICES AND PRICE VARIATIONS
3.1 Prices and currencies of the Products are as set out in the Confirmed Order.
3.2 Unless otherwise stated in the Confirmed Order, ALCHEM’s prices include standard packaging but do not include Value Added Tax or any other similar applicable taxes, duties, levies or charges in any jurisdiction levied in relation to the Products or the delivery thereof (“Taxes”). The amount of any Taxes levied in connection with the sale of Products to Customer shall be for Customer’s account and shall either be added to each invoice or separately invoiced by ALCHEM to Customer.
3.3 Unless the prices have explicitly been indicated as firm by ALCHEM in the Confirmed Order, ALCHEM is entitled to increase the price of undelivered Products if relevant manufacturing cost factors determining the Price of the Products have been subject to an increase. Such factors may include but are not limited to: prices for raw and auxiliary materials, energy, components obtained by ALCHEM from third parties, governmental charges, freight costs and insurance premiums. ALCHEM shall notify Customer of such increase, which shall not exceed the commensurate increase in the relevant cost factors.
3.4 If prices are stated in any other currency than US dollars (USD) or Swiss francs (CHF) or Euro (EUR), the prices are effective on the basis of exchange rate of the stated currency against both USD and CHF (each the “fxBase”). Should at the time of receipt of any payment the exchange rate of either USD or CHF to the stated currency have increased against fxBase by more than ten percent (10%) (“fxNew”), the prices shall be retroactively adjusted accordingly by multiplying the prices with the factor (fxNew/fxBase), where “fxNew” stands for the average interbank exchange rate of the previous month as shown by Reuters; and “fxBase” stands for the average interbank exchange rate of the month at the time of issuance of the Confirmed Order as shown by Reuters. Should the increase of the exchange rate by more than ten percent (10%) affect both USD and CHF, the following formula shall be applied: ((fxNew USD/fxBase USD))+(fxNew CHF/fxBase CHF)/2).
The difference to the price stated in the Confirmed Order shall either be added to each invoice or separately invoiced by ALCHEM to Customer.
4. PAYMENT AND PAYMENT DEFAULT
4.1 Unless stated otherwise in the Confirmed Order, payment shall be made on the basis of net cash, to be received by ALCHEM within 30 (thirty) days following the date of ALCHEM’s invoice.
4.2 All payments shall be made without any deduction on account of any bank charges, Taxes and free of set-off or other counterclaims except for set-offs with uncontested and/or enforceable counterclaims.
4.3 In the event of delayed payment, Customer shall be in default without any further notification or reminder required. ALCHEM may, without prejudice to any other rights or remedies available to ALCHEM, charge interest on any overdue payment at twelve percent (12%) per annum from the due date computed on a daily basis until all outstanding amounts are paid in full. All costs and expenses incurred by ALCHEM with respect to the collection of overdue payments (including, without limitation, reasonable attorney’s fees, expert fees, court costs and other expenses of litigation) shall be for Customer’s account.
4.4 Any complaint with respect to the invoice must be notified to ALCHEM in writing within 20 (twenty) days after the date of invoice. Thereafter, Customer shall be deemed to have approved the invoice.
5. DELIVERY AND DELAY
5.1 Unless stated otherwise in the Confirmed Order, all deliveries of Products shall be CIP (Carriage and Insurance Paid To) to the named place of destination. The term CIP shall have the meaning as defined in the latest version of INCOTERMS published by the International Chamber of Commerce in Paris, France, at the time of the Confirmed Order.
5.2 Unless explicitly stated otherwise in the Confirmed Order, any times or dates for delivery by ALCHEM are estimates.
5.3 In case of delay in delivery of any Products, ALCHEM shall only be in default upon receipt of a written reminder by Customer, granting an additional grace period of at least thirty (30) days to deliver the Products. Upon expiry of such grace period, Customer shall not be relieved from its obligation to accept delivery of the Products, unless Customer has promptly notified ALCHEM in writing that it will rescind from the part of the Confirmed Order that is delayed.
5.4 ALCHEM is entitled to deliver the Products as stated in the Confirmed Order in parts and to invoice each partial delivery separately.
6. EXAMINATION AND CONFORMITY TO SPECIFICATIONS
6.1 On delivery Customer shall examine the Products and satisfy itself that the Products delivered meet the agreed specifications for the Products as stated in the Confirmed Order or, in the absence of agreed specifications, to the most recent specifications used by ALCHEM at the time of delivery of the Products (the “Specifications”).
6.2 Complaints about the Products shall be made in writing and must be received by ALCHEM not later than 7 (seven) days from the date of delivery in respect of any defect, default or shortage which would be apparent from a reasonable inspection on delivery, and 7 (seven) days from the date on which any other claim (e.g. hidden defects) was or ought to have been apparent.
6.3 Warranty on repaired or replaced parts of the Products shall not exceed the term of the original warranty period.
6.4 Defects in parts of the Products do not entitle Customer to reject the entire delivery of the Products, unless Customer cannot reasonably be expected to accept delivery of the remaining non defective parts of the Products. Complaints, if any, do not affect Customer’s obligation to pay for the Products.
7. TRANSFER OF RISK AND PROPERTY
7.1 The risk of the Products shall pass to Customer according to the applicable Incoterm (see Section 5.1).
7.2 The title in the Products shall not pass to Customer and full legal and beneficial ownership of the Products shall remain with ALCHEM unless and until ALCHEM has received payment in full for the Products, including costs such as interest, expenses and Taxes.
8. LIMITED WARRANTY
8.1 ALCHEM warrants that on the date of delivery of the Products and for a period of (i) twelve (12) months from the date of delivery of the Products or (ii) the expiry of the Products’ shelf-life as per the Specifications, whichever is the earlier, the Products shall conform to the Specifications.
8.2 If and to the extent Products are in breach with such warranty, ALCHEM may at its own option and within a reasonable time either (i) repair at no charge to Customer, (ii) replace the Products against return of the defective Products to ALCHEM, or (iii) issue a credit note in the amount of the original invoice price and against return of the defective Products to ALCHEM.
8.3 ALCHEM’s obligation to repair, replace, or credit shall be subject to receipt by ALCHEM of timely notice of any alleged non-conformance of Products in accordance with Section 6 and, if applicable, the return of the Products to ALCHEM at Customer’s expense.
8.4 To the extent permitted by applicable law and notwithstanding anything to the contrary, the foregoing warranty and associated remedies are exclusive and in lieu of all other warranties, representations, conditions or other terms, wither express, implied, statutory, contractually or otherwise, including, without limitation, any warranty of merchantability, suitability or fitness for a particular purpose, or absence of infringement of any claim in any intellectual property right pertaining to the Products.
9. INTELLECTUAL PROPERTY
9.1 All intellectual property rights arising out of or in connection with the Products shall be the exclusive property of ALCHEM.
9.2 The sale of Products shall not, by implication or otherwise, convey any license under any intellectual property right relating to the compositions and/or applications of the Products, and Customer explicitly assumes all risks of any intellectual property infringement by reason of the use of the Products, whether singly or in combination with other materials or in any processing operation.
10. LIMITED LIABILITY
10.1 ALCHEM’s aggregate total liability for any and all claims arising out of or in connection with the Products under any title shall in respect of any Confirmed Order be limited to direct damages incurred by Customer and shall under no circumstances exceed the price of the Confirmed Order in relation to which the damage occurred.
10.2 ALCHEM shall under no circumstances be liable to Customer or any other person for any kind of special, incidental, indirect, consequential, or punitive damage or loss, cost or expense, or for damage based on lost goodwill, lost sales or profit, loss of anticipated savings delay in delivery, business interruption, impairment of other goods, third party claims or on any other pure economic loss, and whether arising out of or in connection with breach of warranty, breach of contract, misrepresentation, negligence or otherwise.
10.3 The limitations of liability set forth in this Section 9 shall not apply in case of damage caused by ALCHEM due to gross negligence or wilful misconduct, or in case mandatory law provides for unlimited liability.
11. FORCE MAJEURE
11.1 Neither party shall be liable in any way for any damage, loss, cost or expense arising out of or in connection with any delay, restriction, interference or failure in performing any obligation towards the other party caused by any circumstance beyond its reasonable control, including, without limitation, acts of God, laws and regulations, administrative measures, embargoes, orders or decrees of any court, earthquake, flood, fire, explosion, war, terrorism, riot, sabotage, accident, epidemic, strike, lockout, slowdown, labour disturbances, difficulty in obtaining necessary labour or raw materials, lack of or failure of transportation, breakdown of plant or essential machinery, emergency repair or maintenance, breakdown or shortage of utilities, but excluding any money transfer restrictions, capital controls or failures of payment transaction systems (“Force Majeure”).
11.2 Upon the occurrence of any event of Force Majeure, the party suffering thereby shall promptly inform the other party by written notice thereof specifying the cause of the event and how it will affect its performance of its obligations under the Confirmed Order. In the event of any delay, the obligation to deliver shall be suspended for a period equal to the time loss by reason of Force Majeure. However, should a Force Majeure event continue or be expected to continue for a period extending to more than 60 (sixty) days after the scheduled delivery date, either Party is entitled to cancel the affected part of the Confirmed Order without any liability to the other Party.
12. MODIFICATIONS TO SPECIFICATIONS
12.1 Unless the Specifications have been agreed to be firm for a certain period of time or quantity of Products, ALCHEM reserves the right to change or modify the Specifications and/or manufacture of Products and to substitute materials used in the production and/or manufacture of Products from time to time without notice. Customer acknowledges that data in ALCHEM’s catalogues, product data sheets and other descriptive publications distributed or published on its websites may accordingly be varied from time to time without notice.
12.2 Customer must utilise and solely rely on its own expertise, know-how and judgment in relation to the Products and Customer’s use thereof. Consultation provided by ALCHEM shall not give rise to any additional obligations.
13. COMPLIANCE WITH LAWS AND STANDARDS
13.1 Customer acknowledges that the use of the Products may be subject to requirements or limitations under any law, statute ordinance, regulation, code or standard, including, without limitation, regulations on pharmaceutical, cosmetic or nutritional products (“Laws and Standards”). Unless and only to the extent that compliance of a specific use of the Products with specific Laws and Standards is an express part of the Specifications, Customer shall be exclusively responsible for (i) ensuring compliance with all Laws and Standards associated with its intended use of the Products, and (ii) obtaining all necessary marketing authorizations, approvals, permits or clearances for such use.
14.1 Either party shall keep confidential all information that is reasonably deemed to be of confidential nature (“Confidential Information”) obtained from the other pursuant to or in connection with these GTC and/or any Confirmed Order. Each party agrees that it shall not use any Confidential Information of the other party for any purpose other than the performance of its respective obligations or enforcing its rights under the terms hereof.
14.2 The obligations above shall not apply if the Confidential Information (i) was known to the recipient (without obligation to keep the same confidential) at the date of its disclosure, (ii) is after the date of disclosure lawfully acquired by the recipient in good faith from an independent third party who is not subject to any obligation of confidentiality in respect of such Confidential Information, (iii) was at the time of disclosure or has become available to the public other than by reason of the recipient’s neglect or breach of the restrictions set out in the applicable Contract or in any other agreement, (iv) has been independently ascertained or created by the recipient without access to any or all of the Confidential Information; or (v) is required to be disclosed by order or decree of a competent court or administrative authority under any governmental law or regulation.
15.1 Neither party may assign any of the rights or obligations under the Confirmed Order without the prior written consent of the other party, except that ALCHEM may (i) assign such rights and obligations to any of its affiliates or to a third party acquiring all or a substantial part of its assets or business relating to the Products or (ii) assign claims for payment of the Products to a third party for debt enforcement.
16. SUSPENSION AND TERMINATION
16.1 If Customer is in default of performance of its obligations towards ALCHEM and fails to provide to ALCHEM adequate assurance of Customer’s performance before the date of scheduled delivery; or if Customer becomes insolvent or unable to pay its debts as they mature, or goes into liquidation (other than for the purpose of a reconstruction or amalgamation), or if any bankruptcy proceeding is instituted by or against Customer or if a trustee or receiver or administrator is appointed for all or a substantial part of the assets of Customer or if Customer enters into a deed of arrangement or makes any assignment for the benefit of its creditors, then ALCHEM may by notice in writing forthwith, without prejudice to any of its other rights:
(i) demand return and take repossession of any delivered Products which have not been paid for; and/or
(ii) suspend its performance or terminate the Confirmed Order for pending delivery of Products unless Customer makes such payment for Products on a cash in advance basis or provides adequate assurance of such payment for Products to ALCHEM.
17.1 Failure by ALCHEM to enforce at any time any provision of the GTC shall not be construed as a waiver of ALCHEM’s right to act or to enforce any such term or condition and ALCHEM’s rights shall not be affected by any delay, failure or omission to enforce any such provision. No waiver by ALCHEM of any breach of Customer’s obligations shall constitute a waiver of any other prior or subsequent breach.
18. SEVERABILITY AND GOOD FAITH
18.1 In the event that any provision of the GTC is held to be invalid or unenforceable, the same shall not affect in any respect whatsoever, the validity and enforceability of the remaining provisions and shall be severed therefrom. The pertaining provisions held to be invalid or unenforceable shall be replaced by a valid or enforceable one, which achieves to the extent possible the original purpose and commercial goal and intent of the invalid provision.
19. GOVERNING LAW AND PLACE OF JURISDICTION
19.1 The parties’ rights and obligations arising out of or in connection with the GTC and/or any Confirmed Order shall be governed by the laws of Switzerland. The United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980 (CISG) shall not apply.
19.2 The parties agree that any claims arising out of or in conjunction with these GTC and/or any Confirmed Order shall be submitted to the exclusive jurisdiction of the courts of Geneva, Switzerland, without restricting any rights of appeal and without prejudice to ALCHEM’s right to submit the matter to any other competent court.
20. SURVIVAL OF RIGHTS
20.1 The parties’ rights and obligations shall be binding upon and inure to the benefit of the parties and their respective successors, permitted assigns, directors, officers, employees, agents and legal representatives. Termination of one or more of the parties’ rights and obligations, for whatever reason, shall not affect those provisions of the GTC which are intended to remain in effect after such termination.
21.1 The original version of the GTC is made in the English language. In the event of any inconsistency or contradiction between the English version and any translation thereof, the English version shall prevail.
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