1. Terms of Purchase Order
1.1. These terms and conditions (which include the terms and conditions on the face of the applicable Purchaser‘s Purchase Order (“P0”) set forth the entire understanding between the Vendor and B.Braun Medical Supplies, Inc. or B.Braun Avitum Philippines Inc. (both will be referred to as “Purchaser”) and supersede (i) all other negotiations, written or oral, between the Vendor and Purchaser with respect to the subject matter of this P0, unless P0 explicitly incorporates or references a written agreement between Vendor and Purchaser, in which case the terms and conditions of that written agreement shall prevail, and (ii) any additional or conflicting terms contained on Vendor's acknowledgment, confirmation, invoice or similar documents. Any additional or conflicting terms will have no effect.
2. Representations and Warranties
Vendor represents, warrants and covenants that:
2.1. the goods (and the manufacture, packaging, storage, handling, transportation and delivery thereof) supplied:
2.1.1. will comply with all applicable laws, rules, regulations, of the country(ies) of manufacture and of delivery,
2.1.2. will conform to the specifications, drawings, samples or other descriptions contained in the Order or provided or approved by Purchaser,
2.1.3. will be merchantable, of satisfactory quality, of good material and workmanship and free from defects, d. if ordered for a specific purpose, will be fit for their intended purpose, e. in the absence of contrary specifications, will be of the highest grade and quality; and f. shall be sold and transferred to the Purchaser free from liens and encumbrances.
2.2. the services provided will be performed
2.2.1. in a professional and workmanlike manner and
2.2.2. incompliance with all applicable laws, rules, regulations, codes and ordinances, and all of Purchaser‘s safety and other requirements communicated to Vendor. Purchaser does not allow or condone the use of un lawful child labor and requires full compliance with the legal requirements for minimum age of workers performing the type of work covered by the Order, as well as all safety requirements under controlling law of the jurisdiction. Purchaser requires that all individuals providing services or performing any work at its plant facilities be 18 years of age or older. All personnel performing services must have the legal right to work in the country in which the services are being performed, and such personnel are not prohibited, by contract or otherwise, from performing such services for Purchaser. Vendor will perform reasonable identity verification and fraud precautions;
2.3. Vendor will:
2.3.1. for all P0 issued, provide written confirmation via email, to the Purchaser contact listed on the P0 within two business days (48 hours), otherwise order is deemed confirmed.
2.3.2. deliver the goods and perform the services that are the subject of the Order by the delivery and performance dates set forth on the face of the P0 (“0n-Time Delivery”) or, if Vendor is unable to meet the 0n-Time Delivery, Vendor will confirm with Purchaser an updated delivery date during P0 confirmation or as soon as Vendor is aware of not being able to complete 0n-Time Delivery;
2.3.3. provide proof of delivery (packing slip, bill of lading, etc.) along with delivered Products without fail, otherwise, this may lead to a delay of payment to Vendor.
2.3.4. at its own cost, initiate, maintain and supervise all environmental and safety precautions and programs in connection with the services and comply with all of Purchaser's environmental, health and safety rules;
2.3.5. at its own cost, obtain and maintain all necessary permits, license or other approvals and give all notices legally required to provide the services;
2.3.6. at its own cost, provide all labor, materials, machinery, equipment, tools, transportation and other facilities and services needed for the proper execution and completion of the P0, unless otherwise provided on the face of the P0;
2.3.7. be solely responsible for all methods and procedures of delivering and coordinating all portions of the services, unless otherwise provided on the face of the P0;
2.3.8. be solely responsible for the hand ling, transportation and disposal of all materials, substances and chemicals that Vendor or any subcontractor brings onto Purchaser‘s premises and any waste generated or resulting from the use thereof;
2.3.9. not dispose or permit the release of any materials, substance or chemical (or any waste generated or resulting from the use thereof) on Purchaser's premises;
2.3.10. inspect any Purchaser-supplied equipment, tools, or other materials (“Purchaser Materials");
2.3.11. not use any Purchaser Materials unless they are suitable for their intended use and will return all Purchaser Materials to Purchaser in a like condition in which they were borrowed;
2.3.12. accept full responsibility for safety and management over persons and property within that portion of Purchasers‘ premises where the services are being performed ("Service Location”) and to the extent possible, physically separate the Service Location from the remainder of the Purchaser's premises;
2.3.13. keep the Service Location and other parts of Purchaser's premises free from accumulations of materials and refuse and, upon completion of the services, promptly remove same and all of Vendor‘s machinery, tools, and equipment and any unused materials, substances or chemicals and return Purchaser‘s premises to their original state; and
2.3.14. remove Vendor employees, representatives and other personnel providing services from Purchaser‘s premises upon request of Purchaser.
3. Transport and Delivery
3.1. Trade Terms: Reference to trade terms such as CIF denoting Cost Insurance and Freight and other trade terms as well as the obligations of parties to a transaction not specified herein shall be interpreted in accordance with Incoterms 2010 issued by the International Chamber of Commerce.
3.2. Delivery: Un less otherwise expressly agreed to by Purchaser in writing, all Products will be delivered in good condition and based on the quantity and quality specified in the P0, and delivery shall be constituted by a notice (“Delivery Notice”) issued Vendor to the Purchaser informing the Purchaser that the Products are ready and available for shipment or transportation at the Vendor‘s premises.
3.3. Delivery Date: Vendor will make all reasonable efforts to conform to delivery by the Target Date as specified in the P0 or Order Confirmation. If no Target Date is specified in the Order Confirmation, then the Products shall be delivered by such date as may be notified subsequently by Vendor. In no event will the Vendor be responsible for any delays resulting from events of Force Majeure more particularly described in Section 8.10.
3.4. Late Delivery: Should a delivery time be exceeded due to fault on the part of Vendor and other than due to the events more particularly described in Section 9 hereof, then the Purchaser may cancel the relevant PO, provided however that the Purchaser and Vendor shall have agreed to a reasonable extension of the period to effect delivery and Vendor remains unable to fulfil the delivery by the expiry of the extended period. Any claims for damages arising from late delivery shall onIy accrue upon expiry of the extension of the period for delivery and the quantum of damages shall be limited to the payment of interest at the prevailing base lending rate quoted by Bangko Sentral ng Pilipinas (BSP) as at the date of default, on the Price of the delayed delivery and for the period commencing from the accrual of the claim to the date of actual delivery or cancellation as the case may be. All claims for consequential, special or indirect damages which may be suffered by the Purchaser are hereby excluded.
3.5. Where the Purchaser is unable or unwilling to accept delivery, or where the Purchaser has failed to make any advance payments or provide a letter of credit required in respect of Products ordered, Vendor shall be entitled to, at its discretion to terminate the sale of the Products to the Purchaser, seek an alternative purchaser for the Products.
4. Inspection of Products
4.1. Inspection: The Purchaser shall be allowed a period of 5 business days ("Inspection Period") from the date of delivery to notify the Vendor in writing of any damage or defects to the Products which are discernible by a visual inspection of the Products. Where a notice is issued by the Purchaser and Vendor agrees with the assessment made in such notice, Vendor shall in its discretion replace the defective Product or refund or credit the Price pursuant to this Section 4.1, provided that this Section 4.1 shall not apply to any defect in the Products which has been subjected to misuse, mishand ling, storage in a manner inconsistent with Product labelling, neglect, modification, or unusual physical or chemical stress after delivery.
4.2. In the event no notice is issued by the Purchaser within the Inspection Period, the Products shall be deemed to be in all respects in accordance herewith save for any latent defects.
4.3. Latent Defect: Vendor shall compensate the Purchaser for the value or replace the Product with its equivalent, as provided in Section 6.3, of defective Products, in the Purchaser‘s possession, including returns from customers onIy in respect of latent defects which is hereby agreed as defects which are due to the manufacturing process which are a breach of the warranty as provided in Section 6.1 and which defect must not be discernible at the time of delivery to the Purchaser. This duty to compensate shall not apply to Products which have been damaged after delivery due to improper storage conditions or Products that may have been kept in storage beyond its ’Use by' date.
5. Price, Payment Terms, Risk and Property in Products
5.1. Prices: The Products are sold at the quotations given by Vendor or agreed by the parties.
5.2. Applicability: In the event of a price increase, the Purchaser shall be entitled to cancel within 5 business days of notification of increase any confirmed Purchase Orders which are so affected by the price increase.
5.3. Risk of Loss: Risk in the Products shall pass upon delivery.
5.4. Payment Terms: The Purchaser shall pay Vendor the full Price of each Purchase Order. Unless otherwise agreed to by the Vendor in writing at the time of acceptance of the Purchase Order, all payments for the Products purchased by the Purchaser shall be paid for by managers check, regular check, by bank-to-bank transfer, or by irrevocable letter of credit, confirmed by a bank and containing terms acceptable to the Vendor. Any bank charges for the chosen method of payment shall be at the expense of the Purchaser.
5.5. Any amounts owed to Vendor in connection with the Product, including without limitation, any costs Vendor incurs on Purchaser‘s behalf for shipping, freight, insurance, and duties and all other amounts due to Vendor shall be paid in full by the Purchaser in the same manner as the Price. If so chosen as the payment method, bank-to-bank transfer will only trigger Vendor‘s obligation to fill the Purchase Order when the transfer is complete and already reflected in Vendor‘s bank account. If so chosen as the payment method, each letter of credit shall be in form and substance acceptable to Vendor and must be received and approved by the Vendor (in its sole discretion) at least fifteen (15) days prior to delivery of a Purchase Order. In this instance, Vendor shall have no obligation to fill any Purchase Order for which a letter of credit has not been provided by the Purchaser and approved by Vendor in accordance herewith.
5.6. Passing of Property: Notwithstanding the passing of risk, property and title in the Products will pass onIy upon receipt of full payment of the Price by Vendor.
6. Warranty and Disclaimer
6.1. Warranty: Vendor warrants that the Product delivered to the Purchaser hereunder (i) shall be consistent with the description and specifications for such of the Products that Vendor may supply to the Purchaser from time to time, as in effect at the time of shipment, and (ii) shall be of satisfactory quality for the Products' stated shelf life (the "Warranty Period").
6.2. Limitation of Warranties: The foregoing warranty in Section 6.1 is in lieu of all other warranties or obligations, express or implied and Vendor hereby disclaims all implied warranties including without limitation the warranties of merchantability and fitness for a particular purpose and non— infringement of any intellectual property rights of any third party.
6.3. Remedies and Limitation: Subject to written notice being given within the Inspection Period as stipulated in Section 4.1, Vendor shall replace or, at the Vendor‘s option, refund the Price or credit (against the Price of future purchases of the Products) the Price of any of the Products that does not comply with the warranty set forth in Section 6.1). At Vendor’s request and expense, Purchaser shall return any Product to be replaced or for which the Price is to be refunded or credited. The Vendor‘s obligation to replace any of the Products which may be defective or refund or credit the Price pursuant to this Section 6.3 shall not apply to any of the Products that has been subjected to misuse, mishand ling, storage in a manner inconsistent with the Product's labelling, neglect, modification, or unusual physical or chemical stress after delivery.
6.4. Limitation of Remedies and Liability: The Purchaser's sole and exclusive remedy for any defective Products including any claim by third parties made against the Purchaser shall be a refund or a credit or a replacement as provided in Section 6.3. In no event shall the Vendor be liable for the cost of any substitute goods or for any loss of profits or for any other special or consequential, direct or indirect, damages, howsoever caused, even if the Vendor has been advised as to the possibility of such damages. To the full extent permitted by law, the Purchaser waives, for itself and for any of its own customers or end users of the Products, all rights and remedies against the Vendor, whether in contract or in tort or otherwise, not provided for in these General Sale Terms.
7. Trademark and Patent Protection
7.1. General: Purchaser acknowledges the validity of and the Vendor‘s ownership of all patents, trademarks and other rights to the Products and the packaging and documentation related to the Products except in the case of non-standard packaging, the ownership of which shall be agreed by the parties separately. The Purchaser acknowledges that all trademarks used by the Vendor in connection with the Products and any foreign language translations thereof ("Vendor Trademarks") are the sole property of the Vendor.
7.2. Use of Trademark: At the Vendor‘s request, the Purchaser shall use Vendor Trademarks on packaging for Products ordered from the Vendor. The Purchaser shall not use Vendor Trademarks other than as expressly permitted by the Vendor in writing.
7.3. No Technology Transfer: Except as provided in Section 7.2, neither party shall acquire any right, title, or interest in any trademark, trade name, logo, patent, technology, domain names, or know— how of the other party by reason of these General Sale Terms. Each party shall be responsible for registering, as necessary, its own trademarks, trade names, and logos and for obtaining patent or other protection for its own technology; provided that Purchaser shall provide the Vendor with such assistance as the Vendor shall reasonably request, including the execution and delivery of documents, to protect or preserve any Vendor Trademarks or other intellectual property rights of the Vendor.
7.4. Infringement: To the best of the Vendor‘s knowledge the Vendor has not, in the production of the Products or in the use of any trademarks or names in the marketing and selling of the Products infringed upon any intellectual property rights of any third party. The sale of the Products bearing the Vendor Trademarks shall not however be construed as a warranty of non-infringement by the Vendor.
7.5. The Purchaser shall immediately give the Vendor written notice of any infringement of the Vendor Trademarks, the Vendor‘s patents, or trade secrets that the Purchaser becomes aware of and, at the Vendor‘s request and expense, cooperate with the Vendor to protect the Vendor Trademarks, the Vendor‘s patents, and trade secrets against such infringement.
8.1. Compliance Policy: Vendor agrees to comply with all applicable national and international laws and regulations, including the International Labour Organization (the "IL0”), Labor Code of the Philippines, industry standards, and all other relevant statutory requirements whichever requirements impose the highest standards of conduct. Vendor further agrees to comply with all ethical standards, B.Braun Code of Conducts, which can be found on https://www.bbraun.com/en/about-us/responsibility/compliance.html and other Purchaser's policy applicable in the performance of this Agreement.
8.2. Data Privacy: Vendor must abide by applicable data privacy laws and regulations when hand ling personal information and shall immediately report to email@example.com of any unauthorized use, disclosure, or loss of personal information relating to Purchaser.
8.3. Fair Competition: Vendor shall comply with laws and regulations on fair competition under The Philippine Competition Act (PCA) or R.A. 10667.
8.4. Environment, Health and Safety: Vendor shall comply with all applicable laws and regulations regarding environment, health and safety. Vendor must work in a way that assures their own safety and the safety of others and in compliance with applicable environmental, health and safety requirements and to report promptly to Purchaser any incident that may impact Purchaser or the business conducted by the Vendor.
8.5. Dealing with Government Officials: Vendor is prohibited from directly or indirectly paying anything of value to a government official or any employee or contractor of BMS in order to (a) win or retain business or to improperly influence the act or decision of any government official, political party, candidate for political office, official of a public international organization, or contractor, employee or director of BMS; (b) gain an improper advantage; or (c) illegally influence the action of any individual, customer, company, or company representative.
8.6. No Gift Policy: In addition, notice is hereby given to the Vendor that Purchaser does not require and expressly prohibits any payments, gifts or gratuities to be made to any employees of Purchaser.
8.7. B. Braun reserves the right to inspect the Vendor regarding the compliance with the code of conduct, which corresponds to the B. Braun Code of Conduct, after giving reasonable advance notice and at its own expense. The Vendor shall permit B. Braun or its representatives (which may also be a third-party auditor) to conduct on-site audits at locations of the Vendor.
9. General Provisions
9.1. Non-assignment: The Purchaser may not assign, transfer, or sell its rights hereunder, or delegate its duties hereunder, to any person including any Associates (as defined below) of the Purchaser, without the prior written consent of the Vendor, which may be granted or withheld in sole discretion of the Vendor. A transfer of a controlling interest in the Purchaser shall constitute an assignment. Any purported assignment without the Vendor‘s consent shall be void and shall constitute a material breach of these General Sale Terms.
9.2. Entire Agreement; Modification: These General Sale Terms and, if applicable, the Purchase and Distribution Agreement and the Distributorship Terms, contain the entire and final agreement between the parties. No modification of any of its provisions, or any future representation, promise, or addition, shall be binding upon the parties unless made in writing and signed by both parties.
9.3. Waiver: A waiver of any obligation the Purchaser has under these General Sale Terms shall be effective onIy if in writing signed by the Vendor. Any waiver shall not affect the Vendor‘s right to require strict compliance with these General Sale Terms in the future.
9.4. Indemnification: The Purchaser shall defend, indemnify and hold harm less the Vendor, its affiliates and each of their respective shareholders, officers, directors, agents, and employees from any claims, demands, loss, damage, liability, or expense, including attorney fees and costs (however incurred, including at trial, on appeal, and on any petition for review), arising out of the acts or omissions of Purchaser or its affiliates, agents, sub-distributors or employees or agents or any breach by the Purchaser of any provisions or representations contained herein.
9.5. Notices: Every notice by one party to the other party shall be in writing and shall be delivered to the addresses set out herein or such other addresses as may be subsequently notified in writing by the other party. Any notice shall be delivered by mail, postage prepaid return receipt requested, post office certified mail, or by courier service. The date of delivery shall be the date on which such notice is actually received by the party to which it was addressed; provided that in case a party fails to notify the change of address or refuses to accept the delivery or is unable to accept the delivery for other causes, any such notice shall be deemed to have been received by the party to which it was addressed on the next date when the mail or courier delivery was deposited.
9.6. Governing Law: These General Sale Terms shall be governed by the laws of the Philippines. In case of dispute, the aggrieved party may seek redress in the courts of Taguig City to the exclusion of all other courts.
9.7. Currency. All amounts payable under these General Sale Terms shall be paid in Philippine Pesos unless otherwise agreed in writing.
9.8. No Agency: The Purchaser is an independent business and has no power, right, or authority to bind the Vendor or to assume or to create any obligation or responsibility, express or implied, on behalf of the Vendor. The Purchaser shall not take any action that could lead a third party to believe it has such authority. Nothing stated in these General Sale Terms shall be construed as creating relationships of partners, employer and employee, franchiser and franchisee, or principal and agent between the parties.
9.9. Force Majeure: Neither party shall be liable for any delay or default in performing its obligations (other than payment obligations and the Purchaser's obligations to obtain regulatory approval for import and sale of the Products) if such default or delay is caused by any event beyond the reasonable control of such party, including, but not limited to, acts of nature, war or insurrection, civil commotion, destruction of production facilities or materials by earthquake, fire, storm or flood, labour disturbances or strikes, epidemic, materials shortages, equipment malfunction or other similar event. The party suffering such cause shall immediately notify the other party of the cause and the expected duration of such cause. If either party's performance is delayed by more than 60 days pursuant to this Section 8.10, the other party may immediately terminate these General Sale Terms by written notice given before the affected party resumes performance.
9.10. Associates: Any breach or violation of any term of these General Sale Terms by any Associates of
the Purchaser or of any sub-distributor or agent authorized in accordance with these General Sale Terms shall be deemed to be a breach or a violation by the Purchaser. An "Associate" is (i) a director or officer of the Purchaser; or (ii) a person or entity controlling, controlled by, or under common control with the Purchaser and their directors and officers; or (iii) a person or entity related to or in which the directors and officers referred to in (i) or (ii) have substantial interest.
9.11. Contract Party Rights: A person who is not a party to this agreement shall have no right under Republic Act No. 386 (the Civil Code of the Philippines) to enforce any term and condition in this agreement, except with the express written consent of the Vendor.
9.12. Restriction in Sale: The Purchaser acknowledges that the Products sold to the Purchaser are marked and labelled country specific. The Purchaser undertakes that the Purchaser will not onward sell the Products to any party whom the Purchaser knows or reasonably ought to have known intend to resell the Products outside of the territory of Philippines. The Purchaser also undertakes to procure from the buyer of the Products an undertaking similar to this undertaking. The Purchaser agrees that this undertaking is given for the benefit of all related companies of the Vendor.
9.13. Representations Regarding Foreign Laws: The Purchaser (if a Vendor operating in a jurisdiction outside the Philippines) recognizes that the Vendor is not fully familiar with the laws, rules, regulations and policies of each jurisdiction outside the Philippines and that the Vendor has entered into these General Sale Terms with the Purchaser (and will perform these General Sale Terms) in reliance upon the following representations and warranties made by the Purchaser on the date hereof and on each date that Product is shipped or sold that: (i) none of these General Sale Terms, the relationship created hereby or the performance hereof is contrary to the laws, rules, regulations or policies of any government, commission, agency or instrumentality having jurisdiction within which the Purchaser is operating ; and (ii) the Purchaser has not refunded and will not refund, either directly or indirectly, any funds to any director, officer, employee or other representative of the Vendor.
9.14. Vendor‘s Remedies: The Vendor‘s exercise of any of its rights and remedies under these General Sale Terms or at law following the Purchaser‘s breach shall not be the exclusive rights or remedies of the Vendor and shall in no way limit the Vendor‘s additional rights or remedies available to it under these General Sale Terms or law. Without limiting the foregoing, in the event of a breach by the Purchaser of any of its obligations under these General Sale Terms, the Vendor may, upon notice to Purchaser and as determined in the Vendor‘s sole discretion, terminate these General Sale Terms in its entirety or in part or suspend the Vendor‘s performance under these General Sale Terms.
9.15. Official Language: The official language of these General Sale Terms is English.