GENERAL TERMS AND CONDITIONS APPLICABLE OF THE SALE OF PRODUCTS FROM MENARINI DIAGNÓSTICOS, LDA
1. Definition of the scope of contract
Regardless of its form, this contract, through offer, quote, request and request for the purchase of products by and between MENARINI DIAGNÓSTICOS, LDA (henceforth referred to as “products”) and other companies or natural persons (henceforth referred to as “buyer”), shall be subject to these contracting general terms and conditions, which shall be the only applicable, except by written agreement between both parties.
Therefore, the contract is composed of these contracting terms and conditions and of the offer, quote, request, request for purchase and any other similar document entered into by and between MENARINI DIAGNÓSTICOS, LDA and the purchaser.
2. Term and validity of the contract
The contract shall be deemed to be concluded and in force from the moment the order or the purchase order is accepted or, alternatively, from the moment of delivery of the product.
3. Time, location and form of delivery of the products
3.1. The delivery of the Products shall be made as swiftly as possible, based on their availability, with the possibility of changing a given agreed upon delivery time based on that availability.
3.2. In case of extension of the delivery time, MENARINI DIAGNÓSTICOS, LDA shall notify the Purchaser as soon as possible and, if the Purchaser does not accept the extension of the delivery time for just cause, it shall be entitled to cancel the request as an exclusive legal remedy against the non-compliance of MENARINI DIAGNÓSTICOS, LDA without any right to compensation.
3.3. In any case, the Purchaser shall be regarded as accepting the extension of the delivery time if, within 24 hours after receiving the communication to that effect, has not notified MENARINI DIAGNÓSTICOS, LDA in writing about the cancelation of the request.
The delivery of Products shall take place in the location indicated in each order, purchase order or similar document, unless otherwise agreed in writing between the parties.
The Purchaser ensures that the location for delivery is adequate and equipped with appropriate facilities for receiving and storing the Products as of the scheduled delivery date, guaranteeing that said facilities comply with the applicable legislation and regulations, including those regarding safety and hygiene, and undertaking to have all relevant authorisations and licenses. To that end, MENARINI DIAGNÓSTICOS, LDA may request that the purchaser demonstrates the fulfilment of such requirements.
5. Receipt of order
At delivery, the Purchaser must carry out the necessary revisions and checks of the products received in order to confirm their appropriate status and ensure that they are in compliance with its request, purchase order or similar document, as well as with its delivery note, the signature of which shall be equivalent to its full agreement.
6. Risks in the delivery
If special activities must be carried out in order to deliver the Products, the Purchaser shall bear the costs and risks of said activities.
MENARINI DIAGNÓSTICOS, S.A. shall not be held liable for any delivery fault or delivery delay as a direct or indirect result of any cause of force majeure or for reasons attributable to the Purchaser.
The Purchaser shall assume all risks that might arise with the loading, unloading and transportation of the Products from the moment they are provided to the Purchaser at the location according to the provisions of number 4.
The prices applicable to the Contract shall be established therein or, in their absence, shall be those in force at the time of acceptance of the orders, purchase orders or similar documents, exclusive of VAT, unless otherwise specified.
8. Transport, shipping, packaging, insurance and other expenses
Transport costs, shipping costs, packaging costs, insurance costs or any other type of costs and expenses, until the moment of receipt of the Products, shall be borne by MENARINI DIAGNÓSTICOS, LDA, provided that the purchase complies with the provisions of paragraph 3; otherwise, MENARINI DIAGNÓSTICOS, LDA shall notify the Purchaser of the new terms and conditions regarding the aforementioned costs and expenses. The Purchaser may accept them or cancel the order pursuant to paragraph 3 (Condition concerning the extension of the delivery time).
9.1. Time limit and interest in arrears
Payment must be made within the time limit agreed upon by the Parties in the contract or, otherwise, within 30 days following the date of invoice; in case of failure to pay, interest in arrears to MENARINI DIAGNÓSTICOS, LDA shall be calculated, without any need for notice; such interest in arrears shall be borne on the outstanding amount ascertained pursuant to the law and at the rate in force at the time of its payment.
9.2. Consequences in case of non-compliance
Without prejudice to the provisions of the previous section, in case of non-compliance with the obligation to pay on part of the Purchaser, the remaining pending debts to MENARINI DIAGNÓSTICOS, LDA shall be net and promptly become due, the suspension of the effects of the obligations due to MENARINI DIAGNÓSTICOS, LDA by the purchaser not being regarded as breach of contract. Similarly, if there are debts to the purchaser, the purchaser shall be entitled to offset them with the Purchaser’s debts to MENARINI DIAGNÓSTICOS, LDA.
10. Exceptional Collection of products
For legal, public order, public health or other similar reasons, MENARINI DIAGNÓSTICOS, LDA may collect the Products at the Purchaser’s establishments when determined by some authority, without the need for the Purchaser’s authorisation, which shall facilitate such action, without prejudice to the obligation of MENARINI DIAGNÓSTICOS, LDA returning the consideration received for the collected Products.
11. Labelling and packaging
The Purchase may under no circumstances change the labels and package of the Products.
12.1. Any claim concerning internal faults or other defects of the delivered Products which have not been detected at the check provided for in subparagraph c) of the Third Condition must be reliably reported to MENARINI DIAGNÓSTICOS, LDA within 48 hours after the delivery. Following that period, the Purchaser shall have no right to make any claim.
12.2. In case of defects or malfunctions in the Products duly recognised by MENARINI DIAGNÓSTICOS, LDA and claimed by the Purchaser within the time limit established in the previous paragraph, they shall generate the obligation on part of MENARINI DIAGNÓSTICOS, LDA to replace the defective Products, without any right to other compensation for said reason.
12.3. MENARINI DIAGNÓSTICOS, LDA shall be held liable for any non-compliance with the applicable legislation on consumers and users only insofar it is directly attributable to it; as such, it shall not be held liable for acts of non-compliance practised by third parties outside the contract.
13. Suspension and rescission of contract
MENARINI DIAGNÓSTICOS, LDA may suspend, in full or partially, the execution of the contract or rescind it, through prior written notice to the Purchaser, without any right to obtain any compensation, in the following cases:
13.1. Non-compliance or defective performance on part of the Purchaser of one or more obligations established in the Contract.
13.2. Sale or interruption of the Purchaser’s business.
13.3. Change of Control by the Purchaser.
13.4. Withdrawal or suspension of the Purchaser’s licence necessary to the execution of the Contract.
13.5. Withdrawal or suspension of the licence of MENARINI DIAGNÓSTICOS, LDA necessary to the execution of the Contract.
14. Intellectual or industrial property rights
14.1. MENARINI DIAGNÓSTICOS, LDA reserves the intellectual or industrial property rights concerning its Products and its brands, without the conclusion of the Contracting entailing any type of right or assignment thereof to the Purchaser.
14.2. Simultaneously, MENARINI DIAGNÓSTICOS, LDA ensures its legitimacy for using the intellectual or industrial property rights concerning the Products, indemnifying and holding the Purchaser harmless from any complaint related thereto, unless such complaint is attributable to a breach on part of the Purchaser.
The parties undertake to keep all information (of an oral, written or other nature) that have been obtained within the scope of the Contract strictly confidential, such obligation extending to the staff of each party who may also have had access to such information. They also undertake to return any document, namely in electronic form, obtained by or on behalf of the other party, as long as it is not necessary to execute the Contract.
16. Obligations concerning data protection
Pursuant to the personal data protection legislation, both parties are informed that the personal data supplied on account of the formalisation of the contract or those which are provided during the contractual execution shall be processed and integrated into their respective files so as to address the needs related to the appropriate management agreed upon, and both parties also mutually undertake to ensure the veracity and accuracy of the collected data, as well as to report subsequent changes; the rights of access, rectification, cancellation and opposition against the other party may be exercised by written communication.
17. Assignment or subrogation
MENARINI DIAGNÓSTICOS, LDA may assign or subrogate the rights and obligations under this contract, including its credit rights against the purchaser. However, the purchaser may not assign or subrogate, partially or in full, any right or obligation arising from the contract, unless otherwise agreed in writing.
The declaration of invalidity of any clause of the Contract shall not affect the remaining clauses, which will remain in effect, making the parties negotiate in good faith the replacement of the clause or clauses of the Contract that have been declared invalid.
19. Governing law and competent jurisdiction
19.1. Contracts are subject to the applicable Portuguese law and, in matters not expressly provided for, the provisions of the commercial code, the sectorial laws and the commercial uses shall apply.
19.2. Any divergence regarding its interpretation, execution and performance shall be settled at the competent district courts of Lisbon, with express waiver of any other.
Any communication addressed to MENARINI DIAGNÓSTICOS, LDA must be sent to Quinta da Fonte, Edificio D. Manuel I (Q53), 2ºB, 2770-203 Paço de Arcos, Portugal.
Paço de Arcos, November 30, 2012