General terms and conditions of sale

1.1.

Scope: These General Terms and Conditions of Sale (“General Sale Terms”) govern the terms of sale of any Products by B. Braun Medical Supplies Philippines, Inc. and B. Braun Avitum Philippines, Inc. (the “Company”) to a Purchaser named in the Order Confirmation (as defined herein) issued the Company and the expression “Purchaser” shall include a Distributor appointed by the Company for such Products. These General Sale Terms apply to all subsequent transactions made between the Company and the Purchaser even if no further reference is made to them in subsequent transactions.

“Products” shall mean goods supplied and sold by the Company as described in the Schedules attached. Where no such Schedule is attached the Products supplied shall be as described and confirmed in the Order Confirmation issued by the Company.

1.2.

Inconsistency: These General Sale Terms may be used together as an addendum to a sale agreement, or a distributorship agreement executed between the Company and a purchaser/ distributor, if any. In the event of any inconsistency between the sale agreement and the terms herein, or the distributorship agreement and the terms herein, then the terms of the distributorship agreement or the sale agreement in the first instance followed by the terms herein shall prevail.

1.3.

Exclusion of Conflicting Terms: All Products sold by the Company shall be sold on the terms and conditions herein and the terms of any Purchase Order (as defined herein) which seek to vary or amend or is in conflict with these General Sale Terms are hereby expressly objected to. All Order Confirmations issued by the Company incorporate these General Sale Terms and delivery of Products is made by the Company pursuant to these General Sale Terms.

1.4.

Duration of Agreement: Where the Company is appointed to supply Products for a specified duration, the additional terms and conditions as are contained a sale agreement or a distributorship agreement executed between the parties shall apply as though the additional terms were set forth herein.

1.5.

No Exclusivity: The Purchaser does not have any exclusive rights of purchase of the Product from the Company.

2.1.

Purchase Orders: Unless otherwise agreed to by the Company in writing, all orders to purchase (each, a “Purchase Order”) shall be placed by a purchaser, in advance, and placed no less than ninety (90) days lead time of the requested delivery date as stated in the Purchase Order. All Purchase Orders shall be subject to minimum order sizes as implemented from time to time by the Company. All Purchase Orders shall be made in writing in a form reasonably satisfactory to the Company (which shall be subject to these General Sale Terms), sent by courier, personal delivery, facsimile or electronic mail. Each Purchase Order shall state the quantity and type of the Products to be purchased, delivery date(s) (in accordance with the forecast, if applicable and unless otherwise agreed in writing by the Company), destination, and confirmation of Price (as defined herein).  No term or condition contained in any such Purchase Order, purchase acknowledgement, or other instrument shall alter, amend, modify, or supplement the parties' obligations hereunder unless specifically agreed in writing by the Company. 

2.2.

Sale of the Products: The Company shall use commercially reasonable efforts to fill any accepted Purchase Orders

3.1.

Trade Terms: Reference to trade terms such as EXW denoting Ex-Works, FCA denoting Free Carrier, 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: Unless otherwise expressly agreed to by the Company in writing, all Products will be delivered Ex-Works, and delivery shall be constituted by a notice (“Delivery Notice”) issued by the Company to the Purchaser informing the Purchaser that the Products are ready and available for shipment or transportation at the Company’s premises.  

3.3.

If the Purchaser fails to accept the Products or fails to take delivery of the Products within 7 days of the date of the Delivery Notice, Purchaser will be liable for storage charges at a rate as may from time to time be charges by the Company. The Company may also arrange for storage with third parties and the Purchaser will be liable for storage charges charged by the third party.

3.4.

Transport: At the request of a Purchaser, the Company may in its sole discretion agree to make transport and insurance arrangements and the cost shall be borne by the Purchaser and if requested earlier by the Company, shall be paid in advance; otherwise, the cost of such transport and insurance arrangements shall be paid by the Purchaser at the time of payment of the Purchase Price of the Products. Unless otherwise agreed in writing the Company reserves the right to select the route and mode of transportation and the Company shall not be bound to select any route whether the same be regarded as cheapest or quickest of all given possibilities.

3.5.

Delivery Date: The Company will make all reasonable efforts to conform to delivery by the Target Date as specified in the 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 the Company. In no event will the Company be responsible for any delays resulting from events of Force Majeure more particularly described in Section 8.10.

3.6.

Late Delivery: Should a delivery time be exceeded due to fault on the part of the Company and other than due to the events more particularly described in Section 8.10, then the Purchaser may cancel the relevant Purchase Order, provided however that the Purchaser and the Company shall have agreed to a reasonable extension of the period to effect delivery and the Company remains unable to fulfil the delivery by the expiry of the extended period. Any claims for damages arising from late delivery shall only 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 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.

3.7.

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, the Company shall be entitled to, at the discretion of the Company terminate the sale of the Products to the Purchaser, seek an alternative purchaser for the Products and recover from the Purchaser any costs, including storage and transport, as well as any loss resulting from the sale.

4.1.

Inspection: The Purchaser shall be allowed a period of 3 business days (“Inspection Period”) from the date of delivery to notify the Company 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 the Company agrees with the assessment made in such notice the Company 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, mishandling, storage in a manner inconsistent with Product labelling, neglect, modification, or unusual physical or chemical stress after delivery.

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.

4.2.

Latent Defect: The Company 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 only 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.

5.1.

Prices: The Company shall sell the Products to the Purchaser at the Prices set forth against the Product in the Price Schedule attached hereto. Where no Schedule is attached, the Products are sold at the quotations given by the Company as to prices. Save where the Company has expressly agreed to a fixed term of supply, Prices are variable and may be varied at any time by the Company.

5.2.

Applicability: Such variation described in 5.1 above will also however apply to Purchase Orders which have been confirmed provided that 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.

Packaging: The Prices include the Company’s standard packaging existing as of the date of shipment.  If the Purchaser requests and the Company agrees to provide non-standard packaging, the Purchaser shall pay the Company an additional fee for such packaging in accordance with the Company’s then existing pricing policies. If the Purchaser has requested that non-standard packaging be used and has provided specifications, designed and/or materials for such non-standard packaging, the Purchaser shall fully indemnify and hold the Company harmless from all losses, expenses, costs and liabilities (including without limitation attorney’s fees) arising from any claim that the non-standard packaging, as a result of such specifications, designs and/or materials, infringes the rights of any third party or the laws of any jurisdiction.  Purchaser shall not have any right to set off or withhold any amounts due to the Company hereunder arising out of, or based upon, any counterclaim, breach of contract, tort or other action against the Company.

5.4.

Risk of Loss: Risk in the Products shall pass upon delivery.

5.5.

Payment Terms: The Purchaser shall pay the Company the full Price of each Purchase Order. Unless otherwise agreed to by the Company 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 Company. Any bank charges for the chosen method of payment shall be at the expense of the Purchaser.

5.6.

Any amounts owed to the Company in connection with the Product, including without limitation, any costs the Company incurs on Purchaser’s behalf for shipping, freight, insurance, and duties and all other amounts due to the Company 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 the Company’s obligation to fill the Purchase Order when the transfer is complete and already reflected in Company’s bank account. If so chosen as the payment method, each letter of credit shall be in form and substance acceptable to the Company and must be received and approved by the Company (in its sole discretion) at least fifteen (15) days prior to delivery of a Purchase Order. In this instance, the Company 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 the Company in accordance herewith. The Company shall be entitled to charge a late payment interest of 5%.

5.7.

Passing of Property: Notwithstanding the passing of risk, property and title in the Products will pass only upon receipt of full payment of the Price by the Company.

6.1.

Warranty: The Company warrants that the Product delivered to the Purchaser hereunder (i) shall be consistent with the description and specifications for such of the Products that the Company 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 the Company 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, the Company shall replace or, at the Company’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 the Company’s request and expense, Purchaser shall return any Product to be replaced or for which the Price is to be refunded or credited. The Company’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, mishandling, 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 Company 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 Company 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 Company, whether in contract or in tort or otherwise, not provided for in these General Sale Terms.

7.1.

General:  Purchaser acknowledges the validity of and the Company’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 Company in connection with the Products and any foreign language translations thereof ("Company Trademarks") are the sole property of the Company.

7.2.

Use of Trademark: At the Company’s request, the Purchaser shall use Company Trademarks on packaging for Products ordered from the Company.  The Purchaser shall not use Company Trademarks other than as expressly permitted by the Company 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 Company with such assistance as the Company shall reasonably request, including the execution and delivery of documents, to protect or preserve any Company Trademarks or other intellectual property rights of the Company.

7.4.

Infringement: To the best of the Company’s knowledge the Company 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 Company Trademarks shall not however be construed as a warranty of non-infringement by the Company.

7.5.

The Purchaser shall immediately give the Company written notice of any infringement of the Company Trademarks, the Company’s patents, or trade secrets that the Purchaser becomes aware of and, at the Company’s request and expense, cooperate with the Company to protect the Company Trademarks, the Company’s patents, and trade secrets against such infringement.

8.1.

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 Company, which may be granted or withheld in sole discretion of the Company.  A transfer of a controlling interest in the Purchaser shall constitute an assignment.  Any purported assignment without the Company’s consent shall be void and shall constitute a material breach of these General Sale Terms.

8.2.

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.

8.3.

Waiver: A waiver of any obligation the Purchaser has under these General Sale Terms shall be effective only if in writing signed by the Company. Any waiver shall not affect the Company’s right to require strict compliance with these General Sale Terms in the future.

8.4.

Indemnification: The Purchaser shall defend, indemnify and hold harmless the Company, 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.

8.5.

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.

8.6.

Governing Law: These General Sale Terms shall be governed by the laws of the Philippines.

8.7.

Counterparts: These General Sale Terms may be executed in counterparts, each of which shall be deemed an original, but both of which together shall constitute one and the same instrument. A facsimile transmission of a signed original shall have the same effect as delivery of the signed original.

8.8.

Currency. All amounts payable under these General Sale Terms shall be paid in Philippine Pesos unless otherwise agreed in writing.

8.9.

No Agency: The Purchaser is an independent business and has no power, right, or authority to bind the Company or to assume or to create any obligation or responsibility, express or implied, on behalf of the Company. 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.

8.10.

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.

8.11.

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.

8.12.

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 Company.

8.13.

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 Company.

8.14.

Representations Regarding Foreign Laws: The Purchaser (if a company operating in a jurisdiction outside the Philippines) recognizes that the Company is not fully familiar with the laws, rules, regulations and policies of each jurisdiction outside the Philippines and that the Company 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 Company.

8.15.

Company’s Remedies:  The Company’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 Company and shall in no way limit the Company’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 Company may, upon notice to Purchaser and as determined in the Company’s sole discretion, terminate these General Sale Terms in its entirety or in part or suspend the Company’s performance under these General Sale Terms.

8.16.

Official Language: The official language of these General Sale Terms is English.