Summary of General Terms and Conditions

Only the German version is legally valid

I. Scope of Application

a)
These
General Terms and Conditions shall exclusively govern the sale of goods for the
pharmaceutical and nutraceutical sector (hereinafter referred to as the
„Goods“) as well as the provision of services, unless otherwise agreed in
writing between the contracting parties.

The customer’s General Terms and
Conditions shall only apply insofar as Vivatis has expressly agreed to them in
writing. Any reference by the customer to its General Terms and Conditions is
hereby expressly rejected.

b)
These
General Terms and Conditions shall apply only to companies duly incorporated
under the laws of the country in which they have their principal place of
business.

 

II. Offers and Conclusion of Contract

a)
Offers
are non-binding.

b)
Contracts
and orders are concluded by mutual declarations through the customer’s purchase
order (offer) and the Vivatis’ corresponding written order confirmation
(acceptance). Should the order confirmation deviate from the purchase order,
Vivatis shall be deemed to have made a new offer in accordance with the German
Civil Code (BGB).

 

III. Purchase Price / Price Increases

 

a)
The
purchase price shall be calculated considering volume, quantities, and
transport of the goods determined at the place of dispatch. Vivatis‘ prices are
subject to statutory value added tax.

b)
Should
new public charges/duties relating to the import or distribution of the goods be
introduced or should existing charges or freight costs increase between the
time of conclusion of the contract and delivery, Vivatis reserves the right to
adjust the purchase price accordingly.

 

IV. Payment

a)
The
purchase price shall be payable net cash when due in accordance with the order
confirmation. Payment periods shall generally commence on the date of the
invoice, unless otherwise agreed between the contracting parties. If the agreed
payment deadlines are exceeded, the customer shall be in default of payment
even without a reminder. The right to claim interest on arrears or damages in
accordance with the statutory provisions shall remain reserved.

b)
In
the event of justified doubts concerning the customer’s ability to pay, in
particular in the event of delay payment, Vivatis shall be entitled to revoke the
agreed payment terms and to demand advance payment or securities for further
deliveries.

c)       Furthermore, in the event of late payment,
Vivatis shall also be entitled to demand non-performance of the contract and to
suspend further performance of the service until full payment has been made. In
addition, Vivatis may unilaterally terminate the contract in writing if payment
has not been received within ten (10) days of the commencement of the default
in payment.
Other statutory claims for damages shall remain unaffected.

d)  The
purchase price payment shall be deemed to have been made in full when the
entire amount of the respective invoice is finally available on one of the
Vivatis’ business accounts.

 

V. Delivery and Transfer of Risk

a)
The
delivery obligation is subject to correct and timely delivery to Vivatis.

In addition, the delivery shall be
carried out as contractually agreed. The therein agreed INCOTERMS shall apply
in their respective current version.

b)
Partial
deliveries are authorized. Short or excess deliveries of up to +- 5% of the
contractually agreed quantity are allowed.

c)
In
the event of a delay in delivery, Vivatis shall inform the customer immediately
and agree a reasonable extension period.

d)
In
case no INCOTERMS were agreed between the parties, the risk shall pass to the
customer upon the goods have been handed over to the carrier. In the event that
the goods are collected by the customer the risk shall pass to the latter when
the goods are made available. The above shall also apply if Vivatis bears the
transportation costs.

e)
Upon
delivery of the goods, the customer shall be required to promptly inform the
transport company immediately of any visible transport damage and/or shortages
and to document these clearly on the enclosed delivery bill. Further
obligations on the part of the customer in the event of defects shall be
governed by clause VII. of these General Terms and Conditions.

 

VI. Samples / Technical advice

a)
The
samples provided by Vivatis as well as the technical and chemical product
specifications have been provided carefully and to the best of Vivatis’
knowledge and are intended solely  as a
general description of the goods.

b)
Services,
as well as details and information provided by Vivatis on the suitability and
use of the goods shall not release the customer from the obligation to carry
out the legally prescribed examinations and tests for the respective individual
purposes without restriction.

c)
The
customer is solely responsible for compliance with all applicable laws and
regulations when using the goods.

 

 

 

VII. Quantity and Quality Claims / Warranty

 

a)
Defects
that can be identified during the incoming goods inspection (any packaging
defects, incorrect deliveries and/or quantity deviations) in the customer’s
area of responsibility must be duly reported in writing without delay within
ten (10) working days upon receipt, unless agreed otherwise by the parties. In
the case of partial deliveries, this obligation shall apply to each individual
partial delivery.

b)
Any
statutory quality analysis must be carried out within thirty (30) working days of
receipt of the goods. Any defects found out therein shall be notified to
Vivatis within five (5) working days of receipt of the results, unless
otherwise agreed by the parties.

c)
Hidden
defects must be reported by the customer within ten (10) days after discovery
of the defect, limited by the shelf life of the goods, unless otherwise agreed.

d)
A
complaint shall not entitle the customer to withhold any due payments or to
refuse to accept further deliveries.

e)
If
the goods are defective and the customer has duly notified Vivatis of this in
accordance with clause VII., the customer shall be entitled to the statutory
rights of subsequent performance subject to the following conditions. Vivatis
shall have the right, at its own discretion, either to remedy the defect or to
replace the goods with goods free of defects. Should the subsequent performance
fail or be dispensable for legal reasons, the customer may, either withdraw
from the contract or be entitled to a reduction in price. Claims for damages in
accordance with clause IX. remain unaffected.

f)
The
warranty period shall be one year after dispatch of the goods, unless mandatory
statutory provisions prescribe a longer limitation period. In addition, there
shall be no claims for defects or consequential claims for defects if the
defects are attributable to subsequent improper modifications to the goods or
to incorrect documentation, including incorrect storage or information provided
by the customer.

g)
Vivatis
does not warrant that the product is free from patents or other industrial
property rights of third parties.

 

VIII. Compliance with Legal and Official Regulations

 

The
customer is responsible for compliance with statutory provisions and official
regulations regarding import, transportation, storage, and use of the goods.

 

IX. Damages / Limitation of Liability

Vivatis
shall be liable for damages in accordance with the statutory provisions and the
following provisions: (i) in the event of simple negligent breach of material
contractual obligations, Vivatis‘ liability shall be limited to compensation
for typical, foreseeable damages; (ii) in the event of simple negligent breach
of secondary obligations, Vivatis‘ liability shall be excluded; (iii) the above
limitations of liability shall not apply to damages resulting from injury to
life, body or health.

 

 

X. Retention of Proprietary Rights

a)
The
delivered goods shall remain the exclusive property of Vivatis until full
payment of all claims (including ancillary claims, claims for damages and
claims arising from checks and bills of exchange) arising from the business
relationship with the customer.

b)
Should
the goods subject to retention of title be processed, Vivatis shall be deemed
to be the manufacturer and shall acquire ownership of the newly created
products free of charge. In the event that the goods subject to retention of
title are processed, combined or mixed with goods owned by third parties,
Vivatis shall acquire co-ownership of the resulting products in proportion to
the invoice value of the other materials. If the goods subject to retention of
title are processed, combined, or mixed with a main item owned by the customer,
the customer hereby assigns his ownership rights to the new item to Vivatis.

c)
The
customer hereby assigns to Vivatis in full all claims arising from the sale of
goods owned or co-owned by Vivatis as security for Vivatis’ share of ownership.
Any other assignment, including in the context of a factoring transaction,
shall not be permitted.

d)
The
customer shall be obliged to store the goods subject to retention of title at
its own expense with the care of a proper businessman and to insure them
against the usual storage risks. Furthermore, the customer hereby assigns its
claims under the insurance contracts to Vivatis.

e)
As
long as the customer fulfils its contractual obligations towards Vivatis, it
shall be entitled to dispose of the goods subject to retention of title in the
ordinary course of business and to collect claims arising from the resale of
the goods subject to retention of title. However, the buyer shall not be
entitled to pledge the reserved goods or the assigned claim to third parties or
to transfer them as security. The customer shall notify Vivatis in writing of
any access by third parties to the goods subject to retention of title or the
assigned claims immediately after becoming aware of them.

f)
In
the event of delay payment by the customer, Vivatis shall be entitled to demand
the return of the goods subject to retention of title without setting a grace
period and without withdrawing from the contract. In addition, the customer
shall provide Vivatis upon request, all necessary information and documents
concerning the inventory of the goods subject to retention of title and the
assigned claims and shall notify its customers of the assignment of claims
without delay.

g)
If
the value of the securities exceeds the sum of Vivatis‘ claims by more than
20%, Vivatis shall release the excess securities at the customer’s request at
Vivatis‘ discretion.

 

XI. Force Majeure / Obstacles of Delivery

Events
and circumstances beyond Vivatis‘ control and for which it is not responsible
(nature disasters, war, labor disputes, energy and raw material shortages,
fires and explosions as well as epidemics and pandemics, and other cases of
force majeure) – even if they occur at the supplier’s premises – shall release
Vivatis from ist obligation to perform for the duration of the disruption and
the extent of its effects. In the event of partial or complete loss of Vivatis‘
source of supply, Vivatis shall not be obliged to purchase from other
alternative suppliers.

 

Should
these Force Majeure events last longer than three (3) months, either party
shall be entitled to withdraw from the contract by written declaration.

XII. Final Provisions

a)
The
place of jurisdiction is the registered office of Vivatis Pharma GmbH
(Hamburg). The law of the Federal Republic of Germany shall apply to the
exclusion of the United Nations Convention on Contracts for the International
Sale of Goods (CISG).

b)
Should
any of the above terms and conditions be declared invalid in whole or in part,
this shall not affect the validity of the remaining terms and conditions. In
this case, Vivatis shall be entitled to replace the invalid provision with
another provision that comes closest to the economic purpose of the invalid
provision and shall be effective.