General Terms and Conditions of Sale
1 Scope of Applicability
1.1 These General Terms and Conditions of Sale (“GTCS”) apply to all sales of Products by ABENA notwithstanding any conflicting, contrary or additional terms and conditions in any written agreement between the Parties. No such conflicting, contrary or additional terms and conditions shall be deemed accepted by ABENA unless and until ABENA expressly confirm the acceptance in writing.
1.2 ABENA reserves the right to change these GTCS at any time. ABENA will give the Customer a one (1) months' notice of any changes.
2 Offers, Purchase Orders and Order Confirmations
2.1 All Offers made by ABENA are open for acceptance within three (3) calendar days from the date of issue, unless otherwise specifically stated therein, and are subject to the availability of the Products offered.
2.2 All Purchase Orders issued by the Customer shall specify as a minimum the type and quantity of Products requested, applicable unit prices, delivery place and requested delivery dates. No purchase order shall be binding on ABENA unless and until confirmed in writing, ABENA will also confirm the anticipated dispatch date
2.3 Customer agrees that any order placed by it may be accepted by ABENA in whole or in part and will thereby become a contract binding at law for the quantity accepted on the terms and conditions set out in this agreement.
2.4 In case of any discrepancy between the Order from the Customer and the Order Confirmation from ABENA, the content of the Order Confirmation shall apply.
3 Prices and Terms of Payment
3.1 The prices shall be those set forth in the ABENA Order Confirmation. All prices are exclusive of taxes, impositions and other charges, including, but not limited to, sales, use, excise, value added and similar taxes or charges imposed by any government authority.
3.2 Unless expressly stated otherwise in the Order Confirmation, payment for Products shall be made within 14 Calendar days from the delivery date or the invoice date, whichever is later, without offset or deduction.
3.3 Customer must submit such financial information from time to time as may be reasonably requested by ABENA for the establishment or continuation of payment terms. ABENA may in its sole discretion at any time change agreed payment terms without notice by requiring payment cash in advance or cash on delivery, bank guarantee, letter of credit or otherwise.
3.4 If Customer fail to pay any invoice within seven (7) calendar days of the due date of payment, ABENA may suspend delivery of any purchase order or any remaining balance thereof until payment is made or terminate delivery of any purchase order or any remaining balance thereof by providing written notice of termination within seven (7) calendar days of the expiration of the grace period. Further, ABENA may charge interest from the due date to the date of payment at the rate of 1 ½ % per month. This shall be in addition to, and not in limitation of, any other rights or remedies to which ABENA are or may be entitled at law or in equity.
3.5 In case of any behavior on the part of Customer which constitutes breach, in particular in the case of delay in payment or an application for opening of insolvency proceedings, ABENA shall be entitled to reclaim the delivered Products. For the avoidance of doubt, such reclaiming does not constitute withdrawal from the Parties overall agreement or the specific Order, unless expressly stated otherwise. After the Products have been reclaimed, ABENA shall be entitled to sell the Products, whereby any resulting income shall be offset against the debts of Customer, minus reasonable sales costs or other associated costs.
4 Terms of Delivery and Late Delivery
4.1 Unless expressly stated otherwise in the Order confirmation, all deliveries of Products shall be Free Carrier (FCA) in accordance with Incoterms 2020. The risk of loss of or damage to Products shall pass in accordance with the agreed delivery term.
4.2 The delivery dates of Products shall be those set forth in the Order Confirmation. If ABENA fail to deliver the Products within fourteen (14) calendar days of the agreed delivery date, the Customer may terminate the applicable Purchase Order in whole or in part (as to those Products affected by the delay) by providing written notice of termination to ABENA within five (5) calendar days of the expiration of the grace period, unless agreed otherwise in writing.
4.3 ABENA reserves the right to make delivery in installments.
4.4 ABENA shall pack and label all Products in accordance with ABENA standard for the specific Product unless otherwise agreed in writing.
5 Products & packaging
5.1 Customer must inspect Products upon receipt at the premises of the Customer. Customer are deemed to have accepted Products delivered unless written notice of rejection specifying the reasons for rejection is received by ABENA within three
(3) labor days after receipt of the Products.
5.2 In case of a latent defect (defects which could not be discovered using ordinary and reasonable care in inspection) the Customer must complain no later than 6 months after the date of the Invoice. ABENA will, at its option and expense; (a) replace the Products with non-defect; (b) modify the Products to make them non-defect or (c) refund the purchase price of the Products.
5.3 Customer shall sell the Products in the same condition as received from ABENA without any human interference affecting the packaging, functionality and quality.
5.4 The Customer shall on his own account make sure the imported/purchased ABENA products conform to local requirements and requests from any national, multinational, state, provincial or local regulatory authority, court or governmental entity (“Regulatory Authority”) as regards packaging, test and local approval, environmental matters, etc. Distributor shall without undue delay inform ABENA on any and all requirements needed to import, market, sell and distribute the Products. If failing to do so, Distributor takes full responsibility. Distributor shall participate in any necessary meetings with authorities in this respect on his own initiative. Should any action be required from ABENA in this respect, Distributor shall inform ABENA.
6 Limitation of Liability
6.1 Neither Party will be entitled to, and neither shall be liable for, indirect, special, incidental, consequential or punitive damages of any nature, including, but not limited to, business interruption costs, loss of profit, removal and/or reinstallation costs, reprocurement costs, loss of data, injury to reputation or loss of customers. Customers recovery from ABENA for any claim shall not exceed the purchase price for the Products giving rise to such claim irrespective of the nature of the claim, whether in contract, tort, warranty or otherwise.
6.2 The liability of ABENA, for all matters, shall be limited to 10 % of the total amount paid and payable to ABENA for Products supplied during the 12 months period immediately preceding the date of notice to ABENA of a claim.
7 Recalls and Complaints
7.1 Both Parties shall without any delay assist each other in investigating and settling any complaints, incidents, near incidents, adverse events, field safety corrective actions and recalls regarding the Products within 5 labor days or less if demanded by public authorities.
7.2 In the event either party receiving a complaint from any Competent or Regulatory Authority they will immediately inform the other Party and both parties will agree on a case by case basis which party will respond/correspond with such Competent/Regulatory Authority.
7.3 Where appropriate, Buyer will provide ABENA with returned samples for examination.
7.4 The decision to recall a batch of product rests with ABENA, but ABENA will take any advice from the Buyer into consideration. If patient or user safety is the issue, a recall will always be implemented. ABENA will decide the nature and urgency of a recall of product, when appropriate, following discussions the Competent/Regulatory Authority.
7.5 Once the decision to recall a batch of Product has been taken, the recall will be initiated by ABENA and carried out following ABENAs quality system requirements with reference where appropriate to the European Commission Guidelines on the Medical Device Vigilance System. ABENA will inform the Buyer of any action which is required of it and Buyer will provide all reasonable assistance. Buyer is committed to be able to recall products minimum on item number level.
7.6 ABENA shall have the responsibility to report to the relevant Competent/Regulatory Authorities all Serious Incidents or Near Incidents relating to the Product in adherence with the European Commission Guidelines on The Medical Devices Vigilance System. Buyer will provide all assistance as may reasonably be required in relation to such reporting and any subsequent investigation.
8 Force Majeure
8.1 Either party shall be excused from any delay or failure in performance if caused by reason of any occurrence or contingency beyond its reasonable control, including, but not limited to, acts of God, acts of war, fire, insurrection, strikes, lock-outs or other serious labor disputes, riots, earthquakes, floods, explosions or other acts of nature. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the time period equal to the period of such excusable interruption. When such events have abated, the parties’ respective obligations shall resume. In the event the interruption of the excused party’s obligations continues for a period in excess of thirty calendar days, either party shall have the right to terminate the applicable contract(s) of sale, without liability, upon thirty calendar days’ prior written notice to the other party.
8.2 ABENA reserve the right for unforeseen delivery barriers. ABENA reserve the right to cancel or suspend the order beyond the agreed time of delivery, if ABENA or its subcontractors may be prevented from fulfilling the contract as a consequence of a governmental action or restriction, change of laws or custom restrictions or other circumstances caused by the ongoing COVID-19. ABENA shall immediately inform the Customer about a possible delay, and when a possible suspension period has ended, ABENA will deliver the items according to the order.
The parties agree and accept that none of the parties can make any claim towards to the other party in the event that ABENA cancels or suspends the order, cf. the above-mentioned section.
8.3 Furthermore, ABENA makes certain reservations for other unforeseen delivery obstructions, such as circumstances out of ABENA´s control, where the opportunity in fulfilling the contract may be considered as being eliminated or obviously difficult. Circumstances, which lead to freedom from responsibility, are for instance war, import prohibitions, epidemics, pandemics, rebellions, export prohibitions, embargos, public confiscations, fire and natural disasters.
8 Intellectual Property
9.1 All Intellectual Property Rights in the Products meaning any statutory and other proprietary rights in respect of copyright and neighboring rights; all rights in relation to inventions, patents, plant varieties, registered and unregistered trademarks, registered and unregistered designs, domain names, and all Intellectual Property rights in any improvement created or developed by Customer or ABENA, during this Agreement shall at all times remain the property of ABENA.
9.2 Customer shall neither register nor have registered any of ABENA´s trademarks, trade names, domain names or symbols of ABENA (or trademarks, trade names, domain names or symbols similar to those of the ABENA). Any registrations of the ABENA name and brand by Customer shall promptly be transferred to ABENA at the expense of the Customer.
9.3 Customer shall immediately stop using the Intellectual Property Rights upon termination of the Parties agreement.
9.4 If any Products delivered are held to infringe a third party’s intellectual property right and ABENA are enjoined from using same, ABENA will, at its option and expense, (a) procure for the right to continue produce and/or sell the Products; (b) replace the Products with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function; (c) modify the Products to make them non-infringing; or (d) refund the purchase price of the Products less a reasonable amount for usage. The foregoing states ABENA´s sole liability for intellectual property rights infringement.
10 Applicable law and Dispute Resolution
10.1 These GTCS and any subsequent contract shall be governed by Danish law, excluding its choice of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
10.2 Any dispute arising out of or in connection with these GTCS or any subsequent contract, including any dispute regarding the existence, validity or termination thereof shall, if the Customer has its place of business outside the EU, be settled by arbitration administered by the Danish Institute of Arbitration in accordance with the rules of arbitration procedure adopted by the Danish Institute of Arbitration. The place of arbitration shall be Sønderborg, Denmark. The language to be used in the arbitral proceedings shall be English.
10.3 Any dispute arising out of or in connection with these GTCS or any subsequent contract, including any dispute regarding the existence, validity or termination thereof shall, if the Customer has its place of business inside the EU, be settled by the district Court in Sønderborg as first instance.