General Terms and Conditions of Sale

These general conditions of sale apply to all Offers and Agreements, unless explicitly agreed otherwise in writing. The applicability of any other general terms used by Customer or referred to by Customer in any way is hereby explicitly excluded and declared not to be applicable. Stipulations varying from these general terms must be expressly agreed upon in writing between Parties. If any provision of these general conditions of sale in whole or in part is held to be illegal, void and/or unenforceable by a competent court or other competent authority, the other provisions of these general conditions of sale shall remain in full force and effect and the (remainder of the) affected provision(s) shall be deemed to be amended to the minimum extent necessary, so that it is no longer illegal, void and/or unenforceable and most nearly reflects the intention of both Parties.

Offers and Pricing
Leader shall make its Offers without prejudice and subject to Agreement. If Customer has provided data, documents and/or other information to Leader with respect to an Offer, Leader may assume the correctness thereof and Offers shall be based thereon. Prices of the Products and/or Services are agreed between Leader and Customer. Such price Agreement will be valid for one calendar year. However, Leader is entitled to change prices at any time as a result of costs increases irrespective of their nature and reason, subject to one month’s prior notice to Customer. Customer shall be entitled to dissolve Agreement, in the event Leader increases prices with more than 10% (ten percent). Unless otherwise agreed upon in writing between Leader and Customer, the price of the Products shall be Ex Works at Leader’s designated location. Unless otherwise agreed upon in writing between Leader and Customer, all prices are exclusive of value-added, sales and/or any other taxes, fees or charges that may be levied by a competent authority against Customer or Leader in connection with the sale and purchase of the Products and/or Services.

Invoices and Payment
If Customer disputes an invoice of Leader, Customer shall explicitly notify in writing its substantiated objections to Leader within the payment term. If no such objections have been made within such term, the invoice shall be deemed to be accepted by Customer. Customer must pay the invoice without any deductions, discounts or debt settlement as per the payment terms set in the Agreement. Such ultimate payment date shall be considered as a firm date. All payments shall be made by Customer to Leader in Euro (€) or USD ($), as per the currency in Agreement, and shall be made by means of wire transfer to a bank account to be designated by Leader. A right of revocation invoked by or a claim of Customer, shall not entitle Customer to suspend, set-off or deduct payments. If Customer fails to pay within the payment term, Leader has the right to charge Customer the statutory (trade) interest on the outstanding amount, from the due date until the date on which payment is made in full. All judicial and extra-judicial costs incurred within reason by Leader as a result of Customer’s failure to fulfill its payment obligations, are for the account of Customer. The value day indicated on the bank statements will be leading and will be deemed to be the day on which the payment from Customer has been received. Leader is entitled to demand that Customer furnishes security in a form to be determined by Leader, and/or that Customer makes an advance payment. If Customer fails to furnish the requested security or to make the advance payment, Leader has the right, without prejudice to any other rights it may have, to immediately suspend its obligations towards Customer until the latter has furnished the desired security or made the advance payment. Payments made by Customer always serve to settle all costs due primarily, then (accrued) interest and subsequently collectible invoices outstanding for the longest period. As mentioned, payments shall be made in Euro (€) / USD ($) without any setoff of debts, by credit to one of the accounts mentioned on the invoice.

Early Termination
If Customer terminates or cancels the Agreement for any reason other than breach by Leader, and in addition to any other remedy available to Leader, under applicable law or in equity: (i) Customer must accept delivery or performance of and pay the contract price (1) for all Goods that are finished (shipped) or ready for shipping and (2) for the portion of completed Services; and (ii) Customer must reimburse Leader for (1) all actual costs incurred by Leader to complete the uncompleted portion of the order, (2) related third party cancellation charges, and (3) Leader’s general, selling and administrative expenses and reasonable profit on the terminated portion of the Agreement.

Packaging and Shipping
Customer shall not re-package or re-label any Products or in any other manner alter the packaging or labeling of the Products without prior written approval of Leader. Leader, in its turn, shall not change its packaging format or in any other manner alter specifications with respect to the labeling of the Products Leader without prior written approval of Customer. All Products must be shipped in accordance with the shipping instructions agreed between Leader and Customer. Customer shall only use reliable freight forwarders and reliable local transportation to minimize the risk of damage to the Products. Freight charges will be paid by Customer, unless Leader and Customer have agreed otherwise in writing. Customer shall promptly make all claims for damage to the Products to its insurance carrier and provide a copy of such claims to Leader.

Delivery and Transport
Unless otherwise stipulated in an Agreement, all Products will be delivered Ex Works at Leader’s designated location. Leader may nevertheless arrange shipping and transportation services for Customer, on behalf of Customer and under Customer’s responsibility – upon the request of Customer. Notwithstanding that transfer of risk shall occur at the time the Products are placed at the disposition of the Customer, transfer of title shall only occur upon receipt of payment in full by Leader for the Products. Until such time as payment in full is received, Leader shall retain title to all Products. Customer shall be obliged to check the goods delivered or the packaging, or have them checked, for any shortages or damage as soon as reasonably practicable after delivery. Customer shall notify Leader directly in writing of any shortages and/or damage identified upon delivery not more than ten (10) calendar days after delivery has taken place, stating reasons, in the absence of which Leader shall be entitled not to handle any complaints in this regard and all Customer’s rights with respect to shortages and/or damage shall lapse. Leader may make partial deliveries, which partial deliveries can be invoiced separately. Customer is then obliged to make payment in accordance with the provisions of Article 3 (Payment). In case of partial delivery, the cost of transport shall be paid by the Customer only for the first delivery; the cost of transport of the other deliveries shall be paid by Leader. In the event that Customer fails to take delivery of the goods within the delivery period  Leader shall be entitled to invoice the goods concerned while the goods are then stored entirely at the expense and risk of Customer. Unless expressly agreed otherwise, notified delivery times shall never be considered as delivery deadlines. In the event of late delivery, Customer must be given notice of default in writing, subject to a reasonable term.

Customer shall ensure that the Products are stored in warehouses which meet Leader’s specifications, as advised from time to time and as set out on the Product label but which, at a minimum, must:
a) protect against environmental and other external factors which could affect the quality and function of the Products such as, but not limited to: lighting, temperature extremes, humidity, airborne particulate and microbial contamination;
b) allow for separation of the Products from defective, recalled, or expired Products and spare parts and waste disposal;
c) be separate from any other operations undertaken by Customer in order to avoid contamination; and
d) comply with all fire safety regulations and other mandatory regulations applicable in the Territory.

Materials and Information of Customer
Customer warrants that the supplied data, documents, information and/or (raw) materials, if any, meet all quantity and quality requirements in order for Leader to manufacture the Products in accordance with the applicable quality and quantity requirements. Leader shall notify Customer immediately if it becomes aware of any shortcoming of Customer to (timely) deliver the agreed materials and/or to deliver such in the agreed quantity and/or quality. Leader shall not assume any liability with respect to unsound Products directly or indirectly caused by data, documents, information and/or (raw) materials provided by Customer nor for suitability and/or quality of the data, documents, information and/or (raw) materials provided by Customer. Any non-attainment of Leader in connection herewith shall not constitute a breach of Leader. Customer shall fully indemnify Leader for any third party claim in this respect.

Retention of title
Title to the purchased goods shall not pass to Customer until Customer has fulfilled all its obligations vis-à-vis Leader in respect of payment of the purchase price for delivered products, or for services which have been performed, as well as any related interest, costs and compensation due. The Customer is allowed to resell the Products supplied in the normal course of business under retention of title for Leader. Until Leader has been paid in full, the Customer grants Leader a security interest in all the Customer’s accounts receivables and book debts, up to the amount Customer owes Leader. The Customer shall undertake to perform all such acts and provide all such notices as are required by the laws of the Territory to ensure that Leader’s position as secured creditor and owner of title is protected and enforceable against any third-party creditor.
Customer may not pledge the products, nor may it create any other (third party) right to or on them, until it has settled all amounts that are due and payable to Leader. Customer is obliged to inform Leader immediately whenever third parties enforce or otherwise assert rights with respect to products which are still owned by Leader.
In the event the Customer fails in the performance of its obligations to pay sums due under this Agreement, or if it is declared bankrupt or is granted suspension of payments, or if the Customer for whatever cause loses, or is threatened with the loss of, the power to dispose of its assets or part of its assets, Leader is irrevocably empowered, without notice of default being required, to remove, or arrange for the removal of, products of which it has retained the ownership from the place where such products are located. Leader may either retain such products until the amount(s) due, including interest, costs and compensation, have been paid in full, or sell such products to third parties, in which case the net proceeds shall be deducted from the total amount due by Customer.

Leader shall not accept any complaints otherwise with regard to the delivered products unless such complaints have been notified in writing to Leader within ten (10) calendar days upon their delivery to Customer. Complaints with respect to invoices which have been sent must be notified in writing to Leader not more than ten (10) calendar days after the date on which the invoices were sent. Following the expiry of these periods, Customer will be deemed to have found the delivered products and/or the invoices issued as correct. Complaints with respect to faults or defects which are externally observable must be made not more than 2 working days after delivery has taken place, stating the faults or defects. Customer is obliged to follow strictly the instructions regarding the manner of storage and handling of the delivered goods. Customer shall at all times allow Leader a reasonable opportunity to remedy any fault or defect. If Leader considers that a complaint is justified, then Leader shall accept the complaint by a written confirmation signed by a Leader’s authorized person, being agreed that Leader will not be obliged to accept complaints about Products damaged during transportation and/or handling by the Customer or its Customers. Leader shall only be obliged to replace the faulty or defective goods as soon as possible, but in any event within thirty (30) working days, without Customer additionally being entitled to enforce any right to compensation or other payment whatsoever. Any product returned without the prior written acceptance by Leader, shall be refused and returned to Customer on the latter’s expenses. Delivered goods may only be returned, for whatever reason, after express permission and shipping instructions have been received in advance from Leader. Leader will only take back products which it has delivered and about which it has received a justifiable complaint with due regard for the provisions in this Article to the extent that such products are returned in their original packaging and in the condition in which they were delivered. Submitted complaints do not exempt Customer from its obligation to pay.

At first request of Leader, Customer shall destroy, return to Leader or in any other way dispose, as instructed by Leader, any and all Products that Leader determined to be unsaleable or otherwise require such disposition. In the event of such return, destruction or other disposition for any reason, including but not limited to any government-ordered recall, Leader shall either replace the Products at its expenses or reimburse Customer for the cost of Products and for any transport and/or shipping costs incurred as a result of the recall, at Leader’s sole discretion. Customer shall maintain complete and accurate records of all Products sold for such period as may be required by applicable law.

Warranty and Product Liability
The Products are subject to the following warranty and no other. Leader’s obligation and liability under this warranty is expressly limited to replacing any Product proving defective under normal use and service within thirty (30) days from their receipt by the Customer, returned in accordance with Leader’s return policy. Products claimed to be defective and for which replacement is desired shall, if requested by Leader, be returned transportation prepaid to Leader’s factory for inspection. Leader shall not be liable for any transportation or other charges, or the cost of installation, loss of turnover and/or profits sustained by Customer or any other damage (including consequential damage) resulting from the defect. Any operation beyond rated capacity or the improper use or application of the product or the substitution upon it of parts not approved by Leader or any alteration or repair by others in such manner as, in Leader’s judgment, to affect the product materially and adversely shall void this warranty. No representative of Leader is authorized to change this warranty in any way, and no attempt, effort or promise to repair the products of Leader either by Leader or any representative of Leader at any time shall change or extend this warranty in any way. In the event Customer extends to his Customers an additional warranty such as by extending the scope or period of warranty or undertaking a warranty of fitness for any particular purpose or any other obligation not encompassed in Leader’s warranty, then Customer shall be solely responsible therefore and shall have no recourse against Leader with respect thereto. Customer will deliver to Leader copies of all documents setting forth standard terms and conditions of sales of products by Customer and upon implementation thereof, give Leader written notice of any change therein.
Customer shall be obliged to maintain adequate product and company liability insurance for the duration of this Agreement and shall provide Leader with a copy of the insurance policy. Customer will defend any proceeding brought against, and will indemnify and hold harmless Leader from and against any and all losses, costs, expenses including reasonable attorney’s fees, liabilities, awards, judgements and decrees arising from or connected with: (i) any claim of a third party, including customers of Customer, relating to any modification made by Customer to the Products or any parts thereof; (ii) any representation, warranty, promise or covenant made by Customer in marketing, selling, licensing or supporting the Products, in excess of any representation or warranty provided by Leader; or (iii) any breach of Customer’s duties or obligations under the Agreement.

a. Products which are purchased from Leader may only be resold and supplied in their original packaging without alterations or additions, and without such resale breaching any statutory provision.
b. Customer is prohibited from reselling damaged or contaminated products. A product is also considered to be damaged if the packaging has been altered, opened or damaged (including water, smoke or fire damage).

Intellectual Property
Customer acknowledges that all intellectual property rights and proprietary rights of Leader, including but not limited to patents, royalties, trademarks, trade secrets, models, know-how and all industrial rights and licenses related to the intellectual property rights, are owned and remain the exclusive property of Leader or its licensors, and that nothing under the Agreement shall be construed to give Customer either during or after the duration of the Agreement any right, title or interest in the intellectual property rights of Leader other than the right to use the intellectual property rights of Leader in connection with the import, marketing, sale and distribution and/or export of the Products under the terms of the Agreement.
Customer may present himself as Customer in the Territory for Leader’s Products. Nothing in the Agreement however shall give to Customer any rights in respect of any Intellectual Property Rights used by Leader in relation to the Products or of the goodwill associated therewith. Customer shall not make any modifications to the Products without promptly and fully notifying Leader and without having permission in writing by Leader. Customer shall promptly and fully notify Leader of any actual, threatened or suspected infringement or claim in the Territory of any intellectual property of Leader that comes to his knowledge. Customer shall at Leader’s request do all such things as may be reasonably required, to assist Leader in taking or resisting any proceedings in relation to any such infringement or claim.

Force Majeure
Any delay or failure in the performance of any obligation by either Leader or Customer shall be excused if and to the extent caused, directly or indirectly, by Force Majeure. If as a result of Force Majeure, any party hereto is precluded from receiving any benefit to which it is entitled hereunder; Leader and Customer shall review the term hereof so as to restore them to the same relative positions as those previously obtained hereunder. Parties expressly agree that for the purpose of the Agreement, the term “force majeure” shall be deemed to include, but not limited to, strike, lock-out, act of terrorism, sabotage, piracy, natural disaster such as but not limited to flood or fire, rebellion, war (whether declared or not), regulations, requirements or acts of civil, administrative or military authorities, unavailability of materials, civil disorder, acts of God, delays of carriers, and in general, any causes beyond Parties’ control. The party affected by Force Majeure shall promptly inform the other party of the occurrence of such Force Majeure. In the event of force majeure occurring at the time of or subsequent to the acknowledgement by Leader of any order or orders from Customer, Leader shall not be liable for total or any partial damages, expenses, or penal sums on account of its failure to fill and execute such orders. In the event that such force majeure causes a delay of more than sixty (60) working days, Customer shall have the right to cancel the order by giving written notice to Leader.

Compliance with Laws
Customer shall comply with and shall notify Leader of all local laws and regulations in this respect, applicable to the sale of Products, including without limitation, import or export control, income tax laws and regulations and local price restrictions, if any. Customer shall notify Leader immediately if any of the Products is in violation with such applicable laws.

Neither Leader nor Customer is allowed to transfer or assign any rights or obligations under this Agreement without the prior written approval of the other Party. Customer hereby approves that Leader is entitled to assign this Agreement in whole or in part to an affiliate of Leader.

The relation between the Parties shall be solely that of Leader and Customer. Nothing in this Agreement shall be construed (i) to give either Party the power to direct or control the daily activities of the other Party, or (ii) to constitute the Parties as employer and employee, principal and agent, franchiser and franchisee, partners, co-owners, representatives or otherwise participants in a joint undertaking. Neither Party shall have the right or authority to create or to assume any obligation on behalf of the other Party or to bind the other Party in any manner.

Foreign Corrupt Practices Act and Anti-Bribery Compliance Policy
Leader is committed to doing business with integrity. This means avoiding corruption of all kinds. It is the policy of Leader to comply with all applicable and relevant anti-corruption laws of the country (NL). These laws prohibit bribery of foreign and local government officials, and in particular, mandate that companies establish and maintain accurate books and records and sufficient internal controls.

No Waiver
No omission or delay on the part of each Party in requiring due and punctual fulfillment by the other Party of the obligations of such other Party as set forth in the Agreement shall be deemed to constitute a waiver by the omitting or delaying Party of any of its rights to require due and punctual fulfillment of any other obligation hereunder, or a waiver of any remedy it might have hereunder.

Surviving Conditions
All terms and conditions of this Agreement which are destined – whether expressed or not – to survive the duration or termination of this Agreement shall so survive.

Applicable Law and Jurisdiction
These general conditions of sale and agreements or obligations ensuing there from, shall be governed by and construed in accordance with the laws of The Netherlands.
The United Nations Convention on Contracts for the International Sale of Goods is not applicable. All disputes relating to or ensuing from the Agreements to which these general terms apply, shall exclusively be settled by the competent court in Amsterdam, The Netherlands.

T&C – version 3, January 2020

T&C Leader Biomedical Europe B.V