The Purchaser should read through the conditions carefully. Your attention is in particular drawn to the provisions of Conditions 1 (Application and Definitions), 2 (Offers, price lists and orders), 3.b (Price increase), 4 (Payment terms) including 4.3 (Retention of title), 7 (Liability) and 11 (Applicable law and jurisdictions).
1. Application and Definitions.
Application. The present general conditions (“the Conditions”) shall apply to all deliveries from Supplier to Purchaser unless otherwise agreed in writing. Any conditions included in either a separate agreement concluded in writing between Supplier and Purchaser or an Order Acknowledgment shall prevail in case of discrepancy between the conditions set out therein and the present Conditions. Depending on which legal entity acts as Supplier or on which laws are applicable to the Conditions, the terms and conditions of Condition 12 supersede the general terms set out in Conditions 1 through 11.
Supplier and Purchaser will also be referred to as “the Party” and/or “the Parties” as necessary.
CMR Documents: the documents related to the UN Convention on the Contract for the International Carriage of Goods by Road of Geneva of May 19 1956.
Contract: the contract between Purchaser and Supplier for the sale and purchase of Products in accordance with these Conditions.
POD Documents: proof of delivery documents, carrier documents attached to Products at Delivery.
Products: Products of Supplier, ordered by Purchaser and delivered and invoiced by Supplier.
Purchaser: the purchaser, placing (directly or indirectly) an order with Supplier, and to be invoiced directly by Supplier.
Supplier: any of the following legal entities: Comasec SAS, Ansell Healthcare Europe NV, Comasec Italia SRL.
Working Day: day not being a Saturday, a Sunday or a Bank Holiday in the country of the registered address of the Supplier.
2. Offers, price lists and orders
2.1. General offers and price lists are submitted for information purposes only and are not binding on Supplier. Purchaser acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Supplier which is not set out in the Contract.
2.2. All orders are subject to Supplier’s approval, (including the Minimum Order Value policy available on request). A Contract is not concluded until the order is accepted in writing by Supplier. Supplier reserves the right to refuse certain orders or propose longer delivery lead times. In case of acceptance of the order, the Supplier shall provide Purchaser with an order acknowledgment at the latest three (3) Working Days after receipt of the order (“the Order Acknowledgment”). Failing written agreement from Supplier to the contrary, orders, after having been accepted by Supplier, may not be cancelled by Purchaser.
2.3. The offers, price lists and proposals are information that may only be used with the express written authorisation of Supplier. The information remains the sole property of Supplier. Offers are only valid for 30 calendar days.
2.4. By reselling Supplier’s products, the Purchaser shall respect any applicable law in terms of sale at a loss and/or dumping prices.
3. Prices and payment
a) Prices are exclusive of any applicable value added or any other sales tax, which are the liability of Purchaser. Except otherwise agreed in writing, the packaging material required for transport purposes is not included in the purchase price and shall be charged separately. This shall also apply to the provision of boxes, pallets or other containers. To the extent that the underlying order does not provide otherwise, these items will be provided to Purchaser for transport purposes against a separate charge and must be returned after receipt of the Products at Purchaser’s expense.
b) Supplier shall have the right to increase the prices at any moment by giving a written notice to Purchaser. The notice can be forwarded by the Supplier at its own discretion by registered mail, by mail against receipt, by email or by fax. The new price list will become effective for all invoices issued 30 calendar days after the price increase notice was sent by Supplier. Between the date of communication of the price increase notice, and the date the new prices become applicable, Supplier shall not be obliged to accept orders that exceed the average, in such a same period of days, +10% of the quantities invoices by Supplier to Purchaser during the last 12 months.
c) Payment. All payments hereunder shall be made in the currency indicated on each invoice. Supplier’s employees are not entitled to collect payments.
4. Payment terms
4.1. Supplier may invoice the Purchaser for the Products on or at any time after the due date for delivery. Except otherwise agreed in writing by Supplier, Supplier’s invoices are payable within the payment terms indicated on the invoice (“the Payment Terms”). In the event that Purchaser does not receive the Products on the due date due to reasons not contributable to Supplier, Purchaser nevertheless has an obligation to pay as if delivery of the Products had taken place in accordance with the delivery terms agreed. Purchaser shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and Purchaser shall not be entitled to assert any credit , set-off or counterclaim against Supplier in order to justify withholding payment of any such amount in whole or in part. Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by Purchaser against any amount payable by Supplier to the Purchaser.
4.2. a) If the total outstanding amount (including pending orders) exceeds the credit limit defined by Supplier ("the Credit Limit"), Supplier shall have the right to refuse or postpone the delivery until the total outstanding amount (including the pending orders and any interests) is below the Credit Limit. The Credit Limit can be reviewed at any moment at Supplier’s sole discretion.
b) In the absence of payment by the due date, (i) Supplier shall have the right to refuse or postpone the delivery until Supplier has received in cleared funds full payment of the unpaid invoices, and (ii) all unsettled invoices become immediately payable, and (iii) Supplier shall automatically charge interest of 10% per annum from the invoice date on all outstanding amounts and without further notification and shall accrue on a daily basis, and (iv) any future invoice shall be paid on a prepayment basis until further notice from Supplier. Purchaser shall pay the interest together with any unsettled invoices.
c) If there are reasonable reasons to believe that Purchaser will not fulfil its obligations to make due payment, Supplier is entitled to demand cash payment on account or demand that Purchaser presents a satisfactory bank guarantee for payment of the Products. In the event that such action is not taken by the Purchaser immediately following notification thereof from Supplier, Supplier is entitled to terminate, by notice in writing to Purchaser, all undelivered items of the Products, without any obligation for Supplier to provide compensation the Purchaser.
d) If Purchaser fails to pay any monies within one (1) month following the due date, Supplier is entitled to terminate the Contract (or any part of it) by notice in writing to Purchaser, with immediate effect. In such event, the Purchaser shall, in addition to its obligation to pay interest, indemnify and hold Supplier harmless from any loss or damage caused by such termination of the Contract.
4.3. Retention of title.
Supplier shall retain title to all delivered Products until the purchase price is paid in full by Purchaser. In case of consecutive deliveries of the Products, the title retention shall apply to the total delivery until full payment of the aggregate purchase price is made.
Purchaser is permitted to resell the Products purchased from Supplier, and for which Supplier has retained title, in Purchaser’s ordinary course of business. If before title to the Products passes to Purchaser, Purchaser becomes subject to any of the events listed in Condition 9.3, or Supplier reasonably believes that any such event is about to happen and notifies Purchaser accordingly, then, provided that the Products have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy Supplier may have, Supplier may at any time require Purchaser to [return?] the Products and, if the Purchaser fails to do so promptly, enter any premises of Purchaser or of any third party where the Products are stored in order to recover them.
5. Delivery terms.
Except otherwise agreed in writing, the delivery of the Products shall always take place, and the risk shall pass to Purchaser, under the Incoterms defined in the invoice (Incoterms 2010) (“the Delivery”). If the Payment Terms are prepayment or equivalent to prepayment, any extra cost (such as warehousing costs, demurrage costs or container rerouting costs) incurred by Supplier due to Purchaser payment delays after the production of the order will be charged to Purchaser. Supplier may deliver the Products by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle Purchaser to cancel any other instalment.
6. Complaints and return of goods.
6.1. Delivery deadlines are only given for information purposes and, if the Payment Terms are prepayment or equivalent to prepayment, the delivery deadlines are subject to reception of the prepayment by Supplier. In the event of delay of delivery, for whatever reason, Purchaser shall not be entitled to claim any compensation whatsoever, to cancel the order or to terminate the Contract. Supplier shall take reasonable action in order to respect the time of delivery stated in the Order Acknowledgment.
6.2Complaints concerning transport damages and obvious defects shall be notified to Supplier on the POD Documents and/or the CMR Documents. Failing such notification, the goods shall be considered irrevocably accepted. Complaints concerning order entry discrepancies and delivered quantities shall be notified to Supplier in writing within five (5) calendar days from Delivery. Failing such notification, the Products shall be considered irrevocably accepted.
6.3. The delivery control by the Supplier shall not in any way release the Purchaser from its obligation to examine the Products at Delivery.
6.4 The Supplier guarantees against material latent defects. Except otherwise defined in an expiry date (when an expiry date is mentioned on the packaging of the Products), such guarantee starts at Delivery and expires one (1) year after Delivery. Latent defect guarantee is subject to the reservations stated in the Conditions, including, without limitation, those set out in Conditions 6.6, 6.7 and 7.1. Complaints regarding latent defects must be notified at the earliest opportunity and no later than five (5) calendar days of the discovery of the defect. However, if Purchaser receives any complaint regarding a patient or user injury or possible injury, the complaint must be reported immediately (the same day) to Supplier.
6.5 All return of Products shall take place with the previous written approval of Supplier’s Customer Service only. Products that are damaged or have been removed from their original packaging will not be accepted. Except otherwise agreed in writing by Supplier, return of Products is at Purchaser’s cost and risk.
6.6 Upon delivery of the Products, Purchaser guarantees that the Products are properly packed, stored under right environmental conditions, and stored under such conditions that the Products consignments can be easily identified and determined, and ensures that the Products and their properties are safe and not damaged. Purchaser must not alter or tamper with the Products packaging. In no event must Purchaser re-package any Products or redistribute any Products, which have been returned to Purchaser by its customers. Burden of proof of respect of Condition 6.6 rests with Purchaser.
6.7. Purchaser will not instigate any recall without the permission of Supplier. In the case of a recall instigated by the Supplier or the authorities, Purchaser will provide assistance to Supplier in ensuring that as much product as possible is collected from the market. Purchaser shall respect all applicable laws and regulations in terms of lot traceability and shall, as a minimum, at all times keep records, including batch numbers, of where and when lots were shipped to.
6.8. Except otherwise agreed in writing, the Purchaser has no right to stock cleansing.
7.1. Supplier is not responsible for damage resulting from inappropriate use, inappropriate storage, fair wear and tear, defective or careless handling or use of inappropriate operating means. Supplier’s obligations shall also not apply to nor include any Products which were subject to accident, alteration, abuse or misuse. Nothing in the Conditions should be construed as a warranty of merchantability or that the Products are fit for a particular purpose. Supplier assumes no responsibility for the suitability or adequacy of the end user’s selection of Products for a specific application.
Supplier’s liability to Purchaser for any claim relating to Products shall be limited to repair, replacement, reprocess or refund of the purchase price, at Supplier’s option, and this shall be Purchaser’s sole remedy. Under no circumstances shall Supplier be liable for indirect, consequential, incidental or special damages (including, without limitation, loss of business profits, loss of goodwill, cost of capital, costs incurred in connection with substitute sources of supply, missed opportunities, envisaged costs savings).
Supplier shall only be liable to Purchaser under the Contract for gross negligence and wilful misconduct.
7.2. Purchaser shall indemnify and hold Supplier harmless against any claim which may be brought against Supplier by any third parties which may arise, directly or indirectly, out of the loss or damage, for which Supplier is not responsible in accordance with the following: Supplier is not responsible for loss or damage which is caused by the Products (i) to any kind of property if the loss or damage occurs while the Products are in the possession of the Purchaser; or (ii) to products manufactured by the Purchaser or to products in which the products of the Purchaser are a part, or of loss or damage to any kind of property caused by such products.
8. Intellectual property rights and confidentiality
8.1. Sale of the goods to Purchaser does not include transfer of Supplier’s intellectual property rights of any kind. Purchaser shall respect the intellectual property rights of Supplier, including, without limitation, the trademarks and copyrights. Any use of the intellectual property rights of Supplier is subject to Supplier’s express previous written approval.
8.2. The Parties shall not disclose directly or indirectly any of the other Party’s trade secrets or other confidential information to any third party or use any of the information and documentation acquired while performing the commercial relationship for other purposes than the performance in good faith of the commercial relationship.
8.3. Neither Party will make any press release or other public announcement regarding their relationship without the other Party's express prior written consent, except as required under applicable law, in which case the Party required to make the press release or public disclosure shall use all reasonable efforts to obtain the prior approval/information of the other Party as to the form, nature and extent of the communication.
9.1 Supplier reserves the right, whenever and for whatever reason, to withdraw immediately and unilaterally from selling any Product or advertisement relating to such Product without compensation whatsoever.
9.2 Supplier can terminate the Contract (or any part of it) at any moment by giving Purchaser a written notice of at least three months.
9.3 Supplier is also entitled to terminate, in full or in part, the Contract or the delivery with immediate effect and without any compensation whatsoever, without prejudice to all its rights in the following cases:
-9.3.1 a failure by Purchaser to fulfil his obligations to Supplier, obligations being defined in the Conditions, or in the annexe(s) to the Conditions, if any;
-9.3.2 bankruptcy, suspension of payment, filing for a court-ordered settlement or extension of due date or deferment or any similar petition with the commercial courts;
-9.3.3 complete or partial cessation of activity, voluntary or court-ordered winding up, or any situation of insolvency of Purchaser;
-9.3.4 any seizure of Purchaser’s assets, rights and claims or in the event of a contested bill of exchange;
-9.3.5 change of control in the affairs of Purchaser;
-9.3.6 the occurrence of any event for reasons beyond Supplier’s control that makes the execution of Purchaser’s obligations more difficult or impossible.
9.4 Termination of the Contract (or any part of it), however arising, shall not affect any of the Parties' rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
10.1. Force majeure.
Neither Party shall have any liability or be deemed to be in breach of these Conditions for any delays or failures in performance of agreement Contract, other than obligations to pay money, which result from circumstances beyond the reasonable control of that Party such as fire, war, general mobilisation, requisition, seizure, international sanctions or embargo, insurrection and civil commotion, shortage of transport, general shortage of materials, restrictions in the use of power and defects or delays in deliveries by sub-contractors caused by any such circumstance referred to in this Condition 10.1. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than 3 months, either Party may terminate this agreement by written notice to the other Party, with no liability.
If Supplier should at any time waive its rights due to breach or default by Purchaser of any provisions of the Contract, such waiver shall not be construed as a continuing waiver regarding other breaches or defaults of the same or other provisions of the Contract.
If due to a change in any applicable law or due to a decision or other act by any competent authority one or more provisions of the Contract can no longer be enforced or an amendment of one or more of the provisions of the Contract is required, the Parties agree that they shall endeavour to find an alternate solution approaching as near as possible the contractual situation existing prior to such change, decision or act. If such solution is not found within six (6) months from the Parties have learned about such change, decision or act, either Party may refer the issue to courts in accordance with Condition 11.
10.4. Independency. The Parties are independent contractors and no Party is the other Party’s legal representative, employee or agent.
10.5 Assignment and subcontracting.
Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
The Purchaser may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of Supplier.
Any notice or other communication given to a Party under or in connection with the Contract shall be in writing, addressed to that Party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that Party may have specified to the other Party in writing in accordance with this Condition, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax or e-mail.
A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to above; if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Working Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or e-mail, one Working Day after transmission.
The provisions of this Condition shall not apply to the service of any proceedings or other documents in any legal action.
10.7 Third party rights.
A person who is not a party to the Contract shall not have any rights under or in connection with it.
11. Application law and jurisdictions.
The law applicable to this Contract is that of the country of Purchaser i.e. the country of the 'bill to' address of Purchaser ("the Country"). Application of the Vienna Convention on the International Sale of Goods of April 11, 1980 is excluded. Purchaser shall respect the applicable laws. The courts of the capital of the Country have exclusive jurisdiction to settle any dispute arising from contractual relationships between Supplier and Purchaser.
The Purchaser hereby acknowledges and agrees that the Products and/or confidential information may be subject to applicable export control and trade sanctions laws, regulations, rules and licences, including without limit those of the U.S., the E.U. and the Country ("Export Control and Sanctions Rules"). Purchaser shall comply with the Export Control and Sanctions Rules and agrees that it alone is responsible for ensuring its compliance with Export Control and Sanctions Rules. In particular, but without limit, the Purchaser will not, and will procure that none of its affiliates will, use, sell, resell, export, re-export, dispose of, disclose or otherwise deal with the Products and/or confidential information, directly or indirectly, to any country, destination or person without first obtaining any required export licence or other governmental approval, and completing such formalities as may be required by Export Control and Sanctions Rules. Purchaser shall not do anything which would cause Supplier to be in breach of the Export Control and Sanctions Rules and shall protect, indemnify and hold harmless Supplier from any fines, losses and liabilities incurred by Supplier as a result of the failure of Purchaser to comply with this Condition 11. Failure by Purchaser to comply with any part of this Condition 11 shall constitute a material breach of this Contract. Supplier reserves the right to refuse to enter into or to perform any order, to cancel any order at its sole discretion if Supplier believes Purchaser has failed to comply with any part of this Condition 11.
Purchaser recognizes and accepts that the laws of countries outside the Country including but not limited to, the EU and US Export Administration Regulations, EU and US International Traffic in Arms Regulations, EU and US Foreign Corrupt Practices Acts, and the UK Corrupt Practices Act (including, without limitation, the UK Bribery Act 2010), may apply to the activities that are subject of the Contract. Purchaser agrees to comply with all applicable laws, and to notify Supplier immediately of any non-compliance with said laws. Compliance herewith is material to the performance of the Contract.
12. Depending on which legal entity acted as Supplier or on which laws are applicable to the Conditions, the following terms and conditions of Conditions 12 supersede the general terms set out in Conditions 1 through 11:
12.1 COMASEC SAS:
Orders must include the following:
- Order number
- product reference(s) / description(s) / quantity(ies)
- billing & delivery addresses
- preferred delivery date
Supplier does not bear any responsibility for a delivery error caused by a mistake in the drafting of Purchaser’s order.
Supplier invoices are payable according to the ‘Loi de Modernisation Economique’. No discount is given for early payment.
Late payment: Any invoice not settled within the deadline agreed by Supplier may result in late payment penalties calculated at a rate of 3 times the legal interest rate (in accordance with article 441-6 of the Commercial Code).
Any costs incurred recovering debts will be charged to Purchaser, with a minimum total of 40 Euros. Purchaser will have to pay any additional costs involved in recovering the debt, on presentation of supporting documents.
12.2 COMASEC ITALIA SRL:
In reference to Condition 3.c, the agents appointed by Comasec Italia SRL are allowed to receive cheques addressed by Purchaser to Comasec Italia SRL, at the condition that the cheque is issued to the benefit of Comasec Italia SRL, not to the benefit of the agent.
12.3 When the laws of Italy are applicable:
12.3.1. Condition 9.3.2 is not applicable. In case of bankruptcy, suspension of payment, filing for a court-ordered
settlement or extension of due date or deferment of any similar petition with commercial courts, the rights of Supplier
shall be enforced as stated in Section 71 of Italian Bankruptcy Law R.D. 16 March 1942 n. 267.
12.3.2. Supplier confirms that any personal data of Purchaser which is given to it by Purchaser or otherwise come to the knowledge of it in the performance of the Contract, shall be used, stored and processed in compliance with the terms of the Legislative Decree no. 196/2003.
12.4 When the laws of England and Wales are applicable:
In addition to Conditions 7.1 and 7.2: Liability
The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
Nothing in these Conditions shall limit or exclude Supplier's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
(d) defective products under the Consumer Protection Act 1987; or
(e) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
Subject to the above and Condition 7.1, Supplier's total liability to Purchaser in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Products.