GENERAL TERMS AND CONDITIONS OF SALES & DELIVERY

Mibelle AG, Bolimattstrasse 1, CH-5033 Buchs AG, Switzerland

 

A. Applicability and General Terms

  • Applicability of the General Terms and Conditions of Sale and Delivery
  1. These General Terms and Conditions of Sale and Delivery (`Terms and Conditions`) are valid for all legal relationships (offers, contract negotiations, contracts) between Mibelle AG, Business Unit Mibelle Biochemistry, Bolimattstrasse 1, 5033 Buchs, Switzerland (`Mibelle`) and customers (`Customer`) regarding (i) the sale and delivery of goods and works (`Products`) and (ii) the supply of services (`Services´) by Mibelle to the Customers.
  2. These Terms and Conditions build an integral part of all existing legal relationships and in particular the contracts between Mibelle and the Customer unless explicitly agreed otherwise. Provisions deviating from these Terms and Conditions shall only be legally binding if explicitly offered by Mibelle or explicitly accepted in writing by Mibelle.
  3. By placing an order to Mibelle, the Customer confirms and accepts that the sale and delivery of the Products as well as the supply of Services shall be governed by these Terms and Conditions. Mibelle reserves the right to amend these Terms and Conditions at any time. Amendments shall be applicable upon notice to the Customer for all legal relationships between Mibelle and the Customer entered into thereafter.
  4. Unless explicitly agreed otherwise by Mibelle in writing, general terms and conditions and/or other contractual documents issued or provided by the Customer are explicitly waived and excluded. This rule shall also apply in case the Customer encloses general terms and conditions or other documents to the order or “order confirmation” or discloses such general terms and conditions or other documents otherwise to Mibelle.
  • Offers, orders and confirmations (conclusion of the contract)
  1. All offers, price lists, product descriptions, prospects, plans etc. from Mibelle are not binding and may be amended or withdrawn at any time, unless explicitely stated otherwise in the respective document.
  2. Offers made by Mibelle are indicative prices based on standard pack sizes and the Incoterms 2010 ICC stated in the offer.
  3. Offers based on estimated or projected quantities are subject to increase in the event that actual quantities purchased during the specified period are less than the estimated or projected quantities.
  4. General quotations contain maximum lead times and minimal order quantities on which the price quotations are based on.
  5. In case Mibelle issues an unbinding offer, the contract between Mibelle and the Customer only enters into effect as of the date of the confirmation of Mibelle. The confirmation may take place in form of a order confirmation (decalaration of acceptance) or the signing of a written contract. Orders and “declarations of acceptance” from the Customer are qualified as offer to conclude a contract only.
  6. Mibelle may receive orders directly from the Customer or from a third party being authorized orally or in writing by the Customer (“Third Party”). Orders from a Third Party are considered as orders on behalf of and on the account of the Customer. From these orders – in case of acceptance by Mibelle and independently from the legal relationship between the Customer and the Third Party – only Mibelle and the Customer shall be entitled and obligated.
  7. The order confirmation of Mibelle contains a detailed description of the Product and/or the Service. Possible change requests or discrepancies shall be submitted to Mibelle within two working days after receipt of the order confirmation. In case no order confirmation is issued, the description of the Product and/or the Service is evident from the offer of Mibelle and/or the signed written contract.
  8. Changes to and/or cancellations of confirmed orders must obtain the written consent of Mibelle. Any expenses and costs incurred through changes or cancellations by the Customer shall be fully borne by the Customer.
  • Form
  1. All agreements entered into between the parties must be in written form in order to be valid.
  2. Declarations in text form which may be submitted or recorded by electronic media (e-mail, sms etc.) are qualified as written declarations from a party. The evidence that such a declaration has been received and retrieved by the addressee is in the sender’s responsibility. Such declarations are considered as received at the time of their retrieval by the addressee.
  • Description of Products, Services, prospects, plans, etc.
  1. All descriptions, pictures and drawings of Products and Services and information provided in brochures, catalogues, plans, etc. are subject to technical modification and improvement. Such descriptions may only depict contractual properties of the Product and Services if explicitly indicated. Mibelle reserves the right to change or modify the specifications and/or manufacture of Products and to substitute materials used in the production and/or manufacture of Products from time to time without notice.

 

B. Products and Services

  • Subject and scope
  1. Articles not stocked or customized or other Products made to measure or according to customer specifications (‘Custom-Built’) may only be ordered in written form. The Customer is committed to accept the full amount of the order.
  2. Subject and scope of the Product is indicated in the order confirmation from Mibelle. Products and Services not indicated in the order confirmation will be invoiced separately. Incidentally clause 4.1 of these Terms and Conditions is applicable.
  • Packing, provision or delivery of Products
  1. The provision or the delivery of the Product (‘Delivery’) will be performed in accordance with the packaging units stated in the offer or in the price lists. Special packing (e.g. special palletizing, smaller pack sizes, etc.) will be charged to the Customer additionally.
  2. For the Delivery of the Products and the passage of utility and risk to the Customer the rules of the Incoterms 2010 ICC according to the order confirmation shall apply.
  3. The Customer shall inform Mibelle of any special requirements concerning transport and insurance or the requirement of any sales certificates. Any requests and/or amendments at a later stage shall only be possible at the full expense of the Customer.
  4. Possible transport damages and shortfalls shall be noted in written by the Customer and confirmed by the carrier on the delivery note and/or the shipping documents. The notification shall take place at the latest within 7 day after Delivery. In case of failure to observe these instructions, Mibelle reserves the right to be absolved of any obligation for compensation.
  5. In case the Delivery is delayed or impossible for reasons beyond control of Mibelle such as refusal of acceptance of Products, postponements, etc., the Products shall be stored for the account and risk of the Customer.
  6. For Deliveries being deposited at the agreed destination at the agreed delivery time but in absence of the Customer, Mibelle assumes no liability for damages or loss of the Products. The Customers accepts the Products as received without signing of the delivery notes and/or shipping documents.
  7. Mibelle is entitled to make partial Deliveries, whereby the first quantity to be delivered shall coincide with the initial date set forth by the Customer at the time of the placement of the order.
  • Warranty
  1. Mibelle inspects the Products in accordance with standard practice before dispatch. Any additional tests have to be agreed upon and will be invoiced to the Customer separately.
  2. Mibelle warrants that the Products meet the agreed specifications according to the order confirmation, or, in the absence of agreed specifications, the most recent specifications used by Mibelle at the time of Delivery (`Specification`). Any warranty beyond as well as any legal warranty are explicitly excluded unless expressly otherwise agreed in the order confirmation and/or the contract.
  3. The Customer shall immediately inspect the Products after Delivery and give written notice to Mibelle within 7 days after Delivery of any defects (postal date stamp applicable). Mibelle shall be notified within 7 days after detection, but no later than 6 months from the date of Delivery. In case of failure of giving notice or in case the Products are processed without inspection the Products are deemed to be accepted by the Customer.
  4. In case objected Products are processed by the Customer or a third Party without prior written consent of Mibelle, the warranty ceases.
  5. After the notification of defects by the Customer, Mibelle may up to its own discretion either inspect the objected Products on-the-spot or request that the Products are returned to Mibelle for inspection purpose. Mibelle will consider the notification and inform the Customer if the asserted defect is covered by the warranty or not. The Customer shall keep the objected Products until the clearing of the notification of defect.
  6. In case a warranty claim exists, Mibelle will up to its own discretion either replace the Product or parts thereof or provide a credit note. The right of the Customer to withdraw from the contract, to claim reduction of the purchase price or to carry out any measures itself on behalf of Mibelle is explicitly excluded.
  7. In case no warranty claim exists, the Customer has to bear all cost incurred at Mibelle in connection with the notification being considered as unfounded. These costs may include costs for transportation and labor. The invoicing shall take place accordingly to the provisions in clause 10.4 of these Terms and Conditions for Services rendered.
  8. Mibelle assumes no warranty in case the Customer or any third Party uses or alters the affected Product without prior written consent of Mibelle or in case of careless handling of the Product.
  9. Unless explicitly agreed otherwise, the warranty expires 6 months following the Delivery of the Product.
  10. Defects of parts of the Delivery do not entitle Customer to reject the entire Delivery, unless Customer cannot reasonably be expected to accept the Delivery of the remaining non defective parts of the Products.
  11. Any cooperation by Mibelle for the detection of defects or their remediation occurs without any prejudice regarding the existence or the scope of the warranty.
  • Liability and restricition of liability
  1. The liability of Mibelle is based on the legal provisions in force. However, Mibelle shall in no event be liable for: (i) slight negligence, (ii) indirect or collateral damages as well as following damages and loss of profit, (iii) unrealized savings, (iv) damages occurred from delayed delivery of Prodcuts or Services as well as (v) all acts and omissions of the Associates of Mibelle, regardless if contractual or non-contractual.
  2. Mibelle is further not liable for damages which may occur out of the following reasons: – Incorrect transportation and/or storage; – Improper, contrary to contract or illegal use of the Products and use of the Products beyond their specifications; – Force majeure events such as nature, fire, strike, war, acts of terrorism and governmental directives; – Breach of obligations by the Customer according to clause 12 of these Terms and Conditions.
  3. In any case, Mibelle`s liability shall be limited to the amount invoiced by Mibelle for the Products.
  • Subject and scope of Services
  1. Subject and scope of the Services are conclusively stated in the respective contract.
  • Prices, invoicing and payment
  1. The prices stated in the respective offers, price lists, etc. at the time of the placement of the order shall be applicable. The final price and currency is set out in the order confirmation.
  2. Any discounts granted by Mibelle only apply to the Products specifically mentioned in the order confirmation.
  3. Mibelle is entitled to renegotiate the price stated in the order confirmation in case currency exchange rate changes in the amount of +/- 3% between the time of the offer and Delivery.
  4. Unless explicitly agreed otherwise, Services rendered shall be charged on time spent. Out-of-pocket expenses and cost of materials will be charged additionally. In case the underlying starting point significantly changes during the term of the contract or shall Mibelle provide further Products or Services, Mibelle may even amend fixed compensations.
  5. All prices and remunerations for Deliveries and Service Deliveries within Switzerland are stated as net prices, in Swiss Francs, plus value added tax (“VAT”) at the relevant statutorily applicable rate.
  6. All prices and remunerations for export Deliveries and export Service Deliveries are stated as net prices, in either Swiss Francs, US Dollars or Euro, plus any statutorily applicable use, value-added, goods and services taxes or other similar taxes (“Consumption Taxes”) in the country of destination, unless the liability to account for and pay such Consumption Taxes is reversed to the Customer (“Reverse charge”).
  7. The invoicing shall take place at the full discretion of Mibelle either prior or after the Delivery or the Service Delivery.
  8. Payment for each single delivery shall be made within specified payment terms stated on the confirmed order. Invoices of Mibelle shall be paid within the payment terms stated in the invoice without any deductions unless explicitly stated otherwise in the order confirmation. The set-off of counterclaims is not admissible. Unfounded deductions shall be invoiced by Mibelle.
  9. Mibelle reserves the right to request on Customers expenses an irrevocable letter of credit or guarantee issued by a first-class Swiss bank valid for a maximum of one year or “Cash Against Documents” (CAD), according to the Incoterms 2010 ICC rules. In case of delays in payment, Mibelle is entitled to redeem the letter of credit or bank guarantee without granting a period of grace in order to cover the demand for payment, interests and costs.
  10. Any discount or deduction explicitly stated in the invoice is only admissible in case the invoice is paid at due date. The term of payment is deemed to have been observed if the amount is credited on the bank account of Mibelle.
  11. Due date is at the same time expiry date. In case invoices are not paid within the term of payment, 6% default interest per annum as well as any processing charges shall be due without serving notice of default. Mibelle explicitly reserves the right to claim any further damage caused by delay, to withdraw from the contract and to request the return of the Products according to art. 214 para 3 Swiss Code of Obligations as well as to claim any further compensation for damages. Mibelle shall be entitled to have the debt collected by a third party at the expense of the Customer.
  12. Any complaints regarding invoices shall be addressed in written form to Mibelle within 10 days after receipt of the invoice, otherwise invoices are deemed to be accepted by the Customer. Payments shall be made in due time also in case unsubstantial parts of the Product and/or the Services, which do not make the use of the Product impossible, are missing or in case rework is needed.
  • Delivery times and terms
  1. Mibelle uses its best endeavors to comply with agreed delivery times. However, Mibelle does not assume any warranty for the adherence to delivery times. In particular in case that postponements are due to delays caused by the Customer or/and third parties such as e.g. delayed conceptual and/or static and/or other releases, delayed signing of time-relevant appendices, change requests by the Customer for Products and/or the Services, missing letters of credit and/or import papers or in general due to missing or insufficient preparation or assistance by the Customer and/or a third party or due to new knowledge or cases of force majeure, Mibelle does not assume any responsibility.

 

C. Obligation of the Customer

  • Provision of Information
  1. The Customer shall undertake all preparation and assistance measures required in connection with the Products and/or the Services proper and in time (incl. any necessary authorizations of authorities as the case may be). In particular the Customer shall already at the time of the placement of the order provide Mibelle with all information and materials necessary for the supply of the Products and/or the Services and shall inform Mibelle of any particular official regulations and other regulations, instructions and particularities which need to be taken into consideration for the proper fulfillment of the contract.
  • Compliance with Laws and Standards
  1. Customer acknowledges that the use of the Products may be subject to requirements or limitations under any law, statute ordinance, regulation, code or standard. Customer shall be exclusively responsible for (i) ensuring compliance with all laws and standards associated with its intended use of the Products; and (ii) obtaining all necessary approvals, permits or clearances for such use.
  • Confidentiality
  1. The Customer shall undertake all necessary measures to keep any and all confidential information disclosed to the Customer and/or a third party by Mibelle in connection with the Products delivered and/or the Services provided strictly secret for an unlimited period. The Customer shall keep confidential all information which is not generally known or in the public domain. All documents, developments and knowhow provided by Mibelle shall be considered as confidential and may only be copied or made available to third parties with prior written consent of Mibelle. Confidentiality has to be maintained even before signing the contract and the confidentiality requirement remains valid after the fulfilment of the contractual relationship. Legal disclosure obligations remain reserved.
  2. The Customer shall refrain from any attempt to solicit any employee of Mibelle either for the Customer or for any other third party.

 

D. Further provisions

  • Appointment of third parties
  1. Mibelle is entitled to appoint third parties in order to fulfill its contractual obligations. Mibelle shall vouch for such supplies and/or services procured by third parties just as for his own.
  • Intellectual property and retention of title
  1. Mibelle and possible licenser remain holder of all rights to the Products and the Services, descriptions, brochures, catalogues, plans, documents and media, including but not limited to patent rights, copyrights, trademarks and other intellectual property rights. The Customer acknowledges any and all rights of Mibelle and/or the licenser concerning and/or from the Product.
  2. The sale of Products by the Customer shall not, by implication or otherwise, convey any license under any intellectual property right relating to the composition and/or applications of the Products, and the Customer explicitly assumes all risks of any intellectual property infringement by reason of the use of the Products, whether singly or in combination with other materials or in any processing operation.
  3. Mibelle confirms that to its best knowledge all descriptions of Products and Services, brochures, catalogues, plans, documents and media handed out to the Customer do not infringe any third party rights. However, Mibelle does not give any guarantee that the descriptions of Products and Services, brochures, catalogues, plans, documents and media handed out to the Customer do not infringe any third party rights.
  4. The Products shall remain the property of Mibelle until the Customer has properly fulfilled payment obligations and Mibelle has received full payment as set forth in the contract. The Customer shall assist in all necessary measures to protect the property of Mibelle. Mibelle is entitled at any time to register the retention of title in the competent retention of title register; and the Customer undertakes to without any delay perform any activities of cooperation required in this respect.
  • Waiver
  1. Failure by Mibelle to enforce at any time any provision of these Terms and Conditions shall not be construed as a waiver of Mibelles`s right to act or to enforce any such term or condition and Mibelle`s rights shall not be affected by any delay, failure or omission to enforce any such provision. No waiver by Mibelle of any breach of Customer`s obligations shall constitute a waiver of any other prior or subsequent breach.
  • Severability
  1. In the event that any provision of these Terms and Conditions shall be held to be invalid or unenforceable by any competent arbitral tribunal, court, governmental or administrative authority having jurisdiction, the other provisions of these Terms and Conditions shall nonetheless remain valid In this case, the parties shall endeavor to negotiate a substitute provision that best reflects the economic intentions of the parties without being unenforceable.
  • Applicable law and place of jurisdiction
  1. All legal relationships between the Customer and Mibelle shall be governed exclusively by substantive laws of Switzerland to the complete exclusion of the United Nations Convention on Contracts for the International Sale of Goods concluded in Vienna on 11 April 1980 [UN (Vienna) Sales Convention].
  2. The exclusive place of jurisdiction shall be Buchs (AG), Switzerland. However, Mibelle reserves the right to take legal actions before the competent court at the seat or domicile of the Customer.