GENERAL TERMS AND CONDITIONS
These general Terms and Conditions of Sale (“Terms of Sale”) shall apply to the products and services (hereinafter jointly referred to as the “Products”) manufactured or provided by Oy Medix Biochemica Ab or its subsidiaries, Medix Biochemica USA, Inc., Lee Biosolutions Inc., Diaclone SAS (hereinafter “Medix” or individually as “Medix Entity”) to its business customers (hereinafter the “Customer”) to the extent not otherwise agreed in writing. Medix, its subsidiaries and Customer are hereinafter jointly referred to as the “Parties” or individually as the “Party”, as required by the context.
2.1 Except where supplemented by any special conditions negotiated by Medix, the placing of an order by or on behalf of the Customer shall be deemed to be subject to these Conditions which the Customer is deemed to have accepted and which shall apply to the exclusion of any other provisions contained in any other document issued by or on behalf of the Customer and in particular, contained in any purchase order, request for service or acknowledgement sent by the Customer. These terms supersede and override any and all contractual terms and conditions of the Customer howsoever and whenever communicated. No modification or amendment of these conditions shall be binding unless agreed to in writing by Medix. If Parties have concluded, or will conclude, a separate distribution agreement, the terms and conditions of the distribution agreement shall apply. Medix may change the Terms and Conditions from time to time, the Terms and Conditions applicable at the time of the Order will apply to that Order.
2.2 All orders shall be subject to separate written order confirmation by Medix in order to be valid and binding. An acknowledgement of order receipt from Medix is not an order confirmation. No additional or different provisions proposed by Customer will apply, unless expressly agreed to in writing by Medix. Customer agrees to give sufficient information requested by Medix for Medix to carry out its part of the order. Customer agrees that Medix can keep records of Customer’s orders and any given information and/or agreement. In the event Medix agrees to make changes to order Medix is entitled to charge Customer a handling charge determined by Medix.
2.3 Medix reserves the right to refuse or cancel an Order for any reason including limitations on quantities available, inaccuracies in ordering or billing information, errors in Product or pricing information, or any other potential problem identified by Medix. Medix will contact Customer if any portion or all of an Order is cancelled or if additional information is required to accept the Order.
2.4 No order which has been accepted by Medix may be cancelled by the Customer except with the agreement in writing of Medix and on terms that the Customer shall indemnify Medix in full against all loss (including loss of profit), costs and expenses incurred by Medix as a result of or prior to cancellation.
2.5 Medix will use commercially reasonable efforts to deliver the Product as soon as reasonably practicable or (where applicable) on or by any date previously agreed in writing by the Parties. Any time or date stated for the delivery of the Product is given and intended as a non-binding estimate only and shall not be of the essence. Medix shall not be liable in any way whatsoever for the consequences of any delay in its delivery of the Product. Unless otherwise stated in writing Medix shall be entitled to make partial provision of the Product.
3. GENERAL OBLIGATIONS
3.1 Unless stated otherwise within the instruction manual or product supporting documentation, The Customer shall be entitled to use the Products only for research and development or for the further manufacturing of its own devices, assays, reagents and/or similar products. The customer expressly agrees not to resell the Products without the prior written consent of Medix. Customer shall at all times conduct its business in full compliance with all applicable laws and regulations including any applicable anticorruption laws or regulations. Customer shall not directly or indirectly sell or otherwise distribute the products and/or documentation related thereto in violation of any law including any applicable export or import control law and regulation, any applicable antiboycott law and regulation, or any applicable economic sanction and trade embargo law and regulation.
3.2. The Customer is not permitted to change the Products, including their packaging, in any way without a prior written consent of Medix. The Customer shall not use, remove, alter, obscure or otherwise interfere with or act in any way as may be construed by Medix as infringing (or being detrimental to) any trademarks, trade symbols or other logos or marks, copyright and other intellectual property rights belonging to Medix (or any third party) relating to the Products or any part thereof without the prior written consent of Medix. Customer shall at all times recognize, respect and protect Medix's right of total ownership of any and all intellectual, industrial or property rights relating to the Products and shall not in any way derogate, diminish, or weaken Medix's sole rights in the registrations of the aforesaid rights.
3.3 No Reverse Engineering. Customer shall not, and shall ensure that its customers agree to not, attempt to reverse engineer or otherwise perform any compositional, structural, functional or other analyses directed to learning the methodology, formulae, sequences, processes, make-up or production of any of the Products or portions thereof.
3.4 Customer is responsible of all registration and/or sales related administrative actions and for obtaining all necessary approvals and/or permissions according to local administration.
4. DELIVERY TERM AND TITLE
4.1 Delivery term shall be agreed between Parties. All risk for loss and damage during transportation shall be determined by stating one
pre-defined commercial term published by the International Chamber of Commerce (Incoterms 2020). Unless stated otherwise the goods are offered FCA (Free Carrier) Medix’s premises. As such the Products shall remain at the Customer's risk as determined by Incoterms 2020.
4.2 Upon delivery, Customer shall inspect Products and immediately notify Medix in writing of any errors or defects detected. Notwithstanding the Customer’s claims, the delivery shall be deemed accepted in the event Product contains only minor errors or defects and Medix agrees to correct such errors or defects under the warranty without undue delay. The delivery shall also be deemed accepted, if the Customer: (i) puts Product into production or other similar use; (ii) notifies Medix of errors or defects after 60 days from the reception; or (iii) accepts the delivery in writing.
4.3 No products should be returned to Medix without prior discussion and authorization by Medix.
4.4 Title to the Products delivered by Medix shall pass to the Customer upon payment of the price of the delivery in full to Medix.
5. PRICES AND TERMS OF PAYMENT
5.1 Unless specifically agreed otherwise, Medix shall invoice the Customer for Medix’ catalog prices at the time of order. Quantity discounts are available for individual bulk orders or annual supply agreements. The Price is exclusive of: value added tax (if applicable), which shall be payable at the rate prevailing at the appropriate tax point; and insurance in respect of postage and/or carriage of the Products, and any handling charges, duties or other similar payments. Medix shall have the right to change its price list at any time without prior notice. Medix reserves the right to add all shipping charges as well as a handling charge to Customer orders.
5.2 Unless agreed otherwise, payment terms are net 30 days from date of invoice. No offsets, settlement discounts or other deductions of any kind may be made against amounts due. All payments should be made to Medix and sent to the address on the invoice, unless other credit transfer arrangements have been made with Medix in advance. Medix shall have the right to request advance payment at its sole discretion.
5.3 If payment is not made in accordance with clause 5.2, Medix, without prejudice to its other rights and remedies hereunder or in contract or tort, reserves the right to charge monthly interest of one and one half (1.5%) percent until the outstanding amount is paid (whether before or after judgement) calculated at a monthly rate.
5.4 Failure to pay by the due date the Price or any part thereof and any other monies payable by the Customer hereunder or under any other contract with Medix also entitles Medix to withhold delivery of all Products or to refuse to provide any further Service under these Terms, or under any other contract, until payment of all amounts owed in respect thereof is confirmed and received. The Customer shall pay all accounts in full and not exercise any rights of set-off, deduction, abatement or counter-claim against invoices submitted. Medix shall be entitled to a general lien on the Products for payment of all monies due and outstanding from the Customer on any account. Until Medix has been paid in full for any products the ownership of said products remains with Medix and Medix reserves its right to repossess its goods at any time.
6. TAXES AND OTHER CHARGES
All stated prices for the Products exclude all sales, use, consumption, value added, excise, customs, import / export, or other taxes, tariffs, fees, duties, withholdings or like charges, domestic or foreign, with respect to the sale, delivery or use of any Products covered hereby. Customer agrees to pay all such amounts and further agrees to reimburse Medix, as applicable, for any such payments made by Medix unless Customer provides to Medix a certificate or letter of exemption acceptable to the applicable taxing authority.
7.1 Medix shall, at its own discretion and expense replace all defective Products, provided that the Customer promptly delivers all defective Products and/or a sufficient amount of sample as determined by Medix to verify the defect or fault, to Medix’s business premises. The Customer shall be responsible for all delivery costs with respect to such Products, which shall be reimbursed by Medix in the event the defect or faults shall be deemed to be within the scope of this warranty. The Customer shall have the risk of loss and damage during the delivery for warranty correction purposes. For the purposes of this section 7.1, a Product shall be deemed to be defective only if it fails to conform to its specifications in any material respect. The warranty does not cover defects or faults attributable to: (a) a Force Majeure Event as described in Section 9 hereof; (b) misuse of the Product or negligence or failure to follow instructions for the use; (c) alterations or modifications made by a party other than Medix; or (d) failure to comply with the storage instructions of the Product.
7.2 If it is established that the defect, fault or error reported by the Customer is not covered by the warranty, Medix shall have the right to charge for the error diagnosis and the related costs. In no event shall Medix be liable to the Customer or its affiliates, whether based in contract, tort, warranty or any other legal or equitable grounds, for any loss of the income, profit or savings or cost of capital of the Customer, for any indirect or consequential damages resulting from or relating to the order or the Products delivered or services provided hereunder, even if Medix has been advised of the possibility of such damages.
Without prejudice to its other rights Medix shall have the right to cancel these Terms of Sale and any other contract immediately if Customer: (i) fails to pay any amount when due hereunder, (ii) breaches any provision of these Terms of Sale, (iii) (A) becomes insolvent, (B) is generally unable to pay, or fails to pay, its debts as they become due, (C) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, (D) makes or seeks to make a general assignment for the benefit of its creditors, or (E) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property or business.
8. FORCE MAJEURE
Medix shall not be liable or responsible to Customer, nor be deemed to have defaulted under or breached these Terms of Sale, for any failure or delay in fulfilling or performing any term hereof, when and to the extent such failure or delay is caused by or results from acts beyond Medix’s control, including, without limitation, the following force majeure events (each, a "Force Majeure Event"): (a) natural disasters; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of these Terms of Sale; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances without excluding breakdowns or defects of instruments, apparatus and materials.
The Customer shall not assign or transfer or purport to assign or transfer any Contract to which these Conditions apply or the benefit thereof to any other person whatsoever without the prior written consent of Medix. Medix reserves the right to transfer, assign or sub-contract the benefit and / or burden of this Contract.
10. GOVERNING LAW
These Terms and all contracts made between Medix and the Customer, and Products and Services provided by Medix to the Customer shall be governed by and construed in accordance with the laws of the state of incorporation of the respective Medix Entity having manufactured or provided the products.
Each of the clauses of these Terms and Conditions operates separately. If any court or relevant authority decides that any of them are unlawful or unenforceable, the remaining clauses will remain in full force and effect.