Terms and conditions of sale
1.1 These terms and conditions apply to all offers and orders to Med-Lab and/or CYTEC for the sale and delivery by Med-Lab of products (hereafter: “Goods”) and services (hereafter: “Services”), and to all Agreements with Med-Lab with respect hereto.
1.2 The applicability of terms and conditions of the other party or Customer (hereafter: “Customer”) of Med-Lab is hereby expressly excluded.
1.3 Provisions that deviate from these terms and conditions can be invoked by the Customer only if and to the extent that these provisions are accepted by Med-Lab in writing.
2. OFFERS, ORDERS AND AGREEMENTS
2.1 All offers from Med-Lab are non-binding.
2.2 Orders and acceptance of offers by the Customer are irrevocable.
2.3 Med-Lab is only bound when it has accepted an offer in writing or has begun performance. Med-Lab is moreover only bound by what was accepted in writing. Verbal commitments or Agreements by or with Med-Lab personnel do not bind Med-Lab except and insofar as Med-Lab confirms these in writing.
2.4 These conditions apply to both changes to the Agreement and to separate Agreements.
3.1 Prices set by or agreed to with Med-Lab are exclusive of V.A.T. They are valid for Ex Works (EXW) Med-Lab plant as referred to in the INCOTERMS 2010 unless otherwise agreed.
3.2 The price of Goods or Services is the price valid at the time of shipment of the Goods or performance of the Services. All shipment and delivery dates are estimated dates only.
4. DELIVERY PERIOD AND DELIVERY
4.1 The delivery period starts after the conclusion of the Agreement, and after Med-Lab has received all data to be provided by the Customer and (if appropriate) after advance payment has been received by Med-Lab or security for payment has been put at its disposal.
4.2 Failure to deliver within an agreed or stipulated delivery period does not entitle the Customer to any damages or to non-fulfilment by it of any of its own obligations arising from the Agreement. The Customer is, however, entitled to rescind the Agreement by written declaration if, and insofar as after a failure to deliver within an agreed delivery period, Med-Lab still fails to deliver the agreed upon Goods or Services within a reasonable period stipulated by the Customer in writing.
4.3 Delivery periods will be extended by the amount of time that the implementation of the Agreement is delayed by any event of force majeure. They will also be extended by the time that the Customer is later in the fulfilment of any of its obligations than is agreed to or could reasonably be expected by Med-Lab.
4.4 Med-Lab has the right to deliver Goods or Services in parts and/or through an affiliate. Each partial delivery will be deemed a separate delivery with respect to the applicability of these conditions.
4.5 Med-Lab shall not be obliged to deliver, in any month, any quantity of Goods in excess of 10% of the Customer's forecasted annual purchase volume for the Goods made known to Med-Lab or, in the absence of a forecasted annual purchase volume, 10% of the historical purchase volume of the Customer over the last six months but subject always to the availability of Goods. Med-Lab reserves the right to allocate available goods amongst its Customers.
5. TRANSPORTATION AND EQUIPMENT
5.1 In all cases where Med-Lab arranges for transport, it is entitled to solely determine the mode thereof.
5.2 Med-Lab is only obliged to co-operate in filling or loading containers, tankers, trucks and/or other means of transportation equipment arranged for by the Customer, if these are in a ready-to-fill position, if they comply with Med-Lab and Government safety laws and regulations, and if all instructions by Med-Lab with respect to loading are followed without delay.
5.3 Med-Lab’s returnable semi bulk containers and (other) equipment of Med-Lab put at the Customer disposal should be used in conformity with Med-Lab’s instructions and returned to Med-Lab in conformity with any express Agreement between parties or, in the absence of an agreed date of return, as soon as possible after the agreed or intended use thereof.
6. RISK, TITLE, INTELLECTUAL PROPERTY
6.1 Risk of loss of any Goods shall transfer to the Customer upon delivery to a carrier or when Med-Lab has complied with its delivery obligations, whichever comes first.
6.2 All Goods sold and delivered by Med-Lab remain the property of Med-Lab until such time as the Customer has paid in full all that which is owed to Med-Lab in connection with the underlying Agreement and/or earlier or later Agreements of the same nature, including damages, costs and interest. At such time Customer will receive good title to all such Goods free from any lien or encumbrance.
6.3 In case the Customer incorporates or transforms the Goods into another product prior to the full settlement of that which is owed to Med-Lab under article 6.2., Customer assigns herewith to Med-Lab title to the other product resulting from such incorporation or transformation, in proportion to Med-Lab’s goods incorporated or transformed.
6.4 In case the Customer sells Goods or a product into which the Goods have been incorporated and/or transformed prior to the full settlement of that which is owed to Med-Lab under article 6.2., the Customer assigns herewith to Med-Lab any receivables and claims in relation to the sale of the goods or the product into which the Goods have been incorporated or transformed.
6.5 The industrial and intellectual property rights to or associated with the Goods delivered remain with Med-Lab or third parties entitled thereto, and are never transferred to the Customer.
6.6 The Customer shall not market, sell or trade any Goods under CYTEC’s trademark without Med-Lab’s prior written permission.
7. INSPECTION, ACCEPTANCE
7.1 The Customer is obliged to take physical acceptance of the Goods at the agreed location at the time of arrival.
All costs of Med-Lab associated with a failure to take acceptance are for the account of the Customer, costs of transport and storage included.
7.2 The Customer is obliged to inspect the Goods with respect to weight, quantity and immediately noticeable defects at the time of physical acceptance.
7.3 Claims with respect to immediately noticeable defects should be notified to Med-Lab in accordance with Article 9 and Med-Lab’s obligations are as described in that Article.
7.4 Claims with respect to shortages (weight, quantity) should be notified to Med-Lab in writing within 14 days after physical acceptance. In the case of a justified complaint made in a timely fashion Med-Lab shall, at the option of the Customer, either arrange for an additional delivery or credit the Customer in proportion to the extent of the shortage. With respect to shortages, Med-Lab shall have no further liability than the above obligations.
8. FORCE MAJEURE
8.1 Med-Lab is entitled to invoke force majeure if the implementation of the Agreement is, in whole or in part, temporarily or not, prevented or impeded by circumstances reasonably out of its control, including natural disasters, epidemics, war, mobilisation, revolution, site or building blockades, strikes, specific work interruptions or work-to-rule slowdowns and lockout, transport interruptions, shortage of raw materials or energy, delay in the provision to Med-Lab of Goods or Services ordered from third parties, accidents, and interruptions of business operations.
8.2 In the case of force majeure on the part of Med-Lab, its obligations are suspended. If the force majeure lasts longer than (4) weeks, Med-Lab and the Customer are both authorized to rescind the non- feasible parts of the Agreement by a written declaration, without prejudice to the provision of article 12.
9.1 Med-Lab warrants that its Goods will meet specification. NO OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WHETHER OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR AGAINST INFRINGEMENT OR OTHERWISE, IS MADE AS TO THE GOODS SOLD OR ANY INSTRUCTIONS OR TECHNICAL ADVICE PROVIDED. In case of defects for which claims are submitted in a timely fashion, Med-Lab will at its own option either redeliver conforming Goods to Customer at no cost, or, credit the Customer as far as reasonable in whole or in part for the invoice value of the Goods in question.
9.2 With respect to immediately noticeable defects, the Customer must submit a claim no later than (14) days after delivery of the Goods, on penalty of loss of any warranty entitlement towards Med-Lab.
9.3 Claims with respect to other defects must be made within (14) days after their appearance and while still within the warranty period, on penalty of loss of any warranty entitlement towards Med-Lab.
9.4 Any right to a warranty lapses if:
a. Directions given by Med-Lab for storage are not followed exactly;
b. Goods are used improperly or not in conformity with the agreed to or usual purpose;
c. The Customer has not fulfilled any of its obligations towards Med-Lab arising from the underlying Agreement, or has not fulfilled them adequately or on time.
9.5 Med-Lab’s warranty liability in connection with any defects in Goods it delivers is limited to its obligations under the warranty described in the previous paragraphs.
10.1 Med-Lab is never obliged to pay damages except if and insofar as the damage suffered was inflicted intentionally or by the gross negligence of Med-Lab. Med-Lab’s liability for loss of profits, consequential or indirect damage is, however, at all times excluded.
10.2 In all cases in which Med-Lab is obliged to pay damages, damages will never be higher than, at its option, either the invoice value of the Goods or Services delivered whereby or in connection with which the damage was caused, or, if the damage is covered by an insurance policy of Med-Lab’s, the amount that is actually paid out by the insurer with respect thereto.
10.3 Any claim against Med-Lab, except those recognized by Med-Lab, lapses after period of (12) months from the time the claim arose.
10.4 Med-Lab’s employees, or independent contractors brought in by Med-Lab for the implementation of the Agreement, can invoke against Customer all means of defences afforded by the Agreement as if they themselves were party to that Agreement.
10.5 The Customer will hold harmless and indemnify Med-Lab, its employees and independent contractors brought in by it for the implementation of the Agreement for each claim by third parties in connection with the implementation by Med-Lab of the Agreement, insofar as those claims are greater than or different from those to which the Customer is entitled from Med-Lab.
11. PAYMENT AND SECURITY
11.1 Payment must take place within (30) days after the invoice date unless agreed otherwise. Med-Lab has however at all times the right to claim full or partial payment in advance, and/or otherwise to obtain security for payment.
11.2 The Customer waives any right to set off amounts charged by and between parties. Warranty claims do not suspend the payment obligations of the Customer.
11.3 If the Customer does not pay any amount it owes pursuant to the foregoing, it is in default without notice. As soon as the Customer is in default on any payment, all Med-Lab’s remaining claims on the Customer become due, and the Customer is immediately in default without notice with respect to those claims. As from the day on which the Customer is in default, the Customer owes Med-Lab late interest of 1% per month or part of a month during which the default continues.
12. SUSPENSION, RESCISSION
12.1 If the Customer does not fulfil one or more of its obligations, does not fulfil them on time or adequately, is declared bankrupt, requests (temporary) moratorium, or proceeds with the liquidation of its business, as well as when its assets are attached in whole or in part, Med-Lab has the right to suspend the implementation of the Agreement or to rescind the Agreement in whole or in part, without prior notice of default, by written declaration, at its option and always without prejudice to any of Med-Lab’s rights to compensation for costs, damage and interest.
12.2 The Customer is authorized to rescind only in the cases referred to in Articles 4.2 and 8.2 of these conditions, and then only after payment to Med-Lab of all amounts owed to Med-Lab at that time, whether or not due.
13. DISPUTES AND APPLICABLE LAW
13.1 All disputes existing between parties shall be heard exclusively by the competent Court of the registered seat of the CYTEC entity that has confirmed the order, unless CYTEC prefers another competent forum.
13.2 All Agreements between Med-Lab and its Customer are subject to the law of the country in which the CYTEC entity that has confirmed the order has its registered seat. The application of the UN Convention of Contracts for the International Sale of Goods is excluded.
13.3 All judicial and extra judicial costs of Med-Lab incurred in connection with the collection of any claim from the Customer are chargeable to the account of the Customer. The extra judicial costs are deemed to amount to at least 15% of the claim amount.
In case one or more provisions of these terms and condition would be invalid or unenforceable, the invalid or unenforceable part or provisions shall be replaced by a provision which accomplishes, to the extent possible, the original intent of such part or provision in a valid and enforceable manner. Failing such replacement, Med-Lab shall have the option to cancel the entire transaction or to proceed based on the other provisions which remain valid.
In the event that REACH Regulation No 1907/2006 of the European Parliament and the Council (REACH) applies and if Customer makes a new use known to Med-Lab according to Art. 37.2 of REACH in order to extend the scope of registration of the goods, its chemical elements and/or its compounds as well as each mixture or solution supplied as defined by Art. 3 paragraphs 1) and 2) REACH, it shall be responsible for providing all information and data which are necessary for the update of the registration and bear any related additional costs.