General terms and conditions of sale
Insofar as not stipulated otherwise in special terms and conditions or agreements, these general terms and conditions of sale (“Conditions”) apply to all offers and quotes made by Ceres Pharma NV (Lembergsesteenweg 25 A, 9820 Merelbeke, Belgium, registered under number 0641.953.324) and/or any of its affiliated companies (“Ceres Pharma”), to each agreement concluded between Ceres Pharma and its customer (“Customer”) and to all invoices issued by Ceres Pharma. In the case of contradiction between the Conditions and any separate agreement concluded between Ceres Pharma and Customer, the stipulations of the separate written agreement prevail. Via the simple act of placing an order, Customer acknowledges acceptance of the Conditions. Acceptance of the Conditions also implies that Customer fully renounces the application of its own general (purchase) terms and conditions. The latter are binding on Ceres Pharma only if Ceres Pharma has explicitly accepted these in writing.
2. Price lists, offers, orders and formation of agreements
2.1. All Ceres Pharma offers and price lists are without obligation, are intended for information purposes only, and are not binding on Ceres Pharma. The latter is bound only by each order or work assignment placed by Customer. An agreement is formed between Ceres Pharma and Customer only via the signing of an order confirmation or any other written agreement by an authorised representative of Ceres Pharma. Intermediaries, representatives, appointees, salespersons, salaried and hourly employees of Ceres Pharma are not authorised to legally bind Ceres Pharma.
2.2. Any accepted order is binding upon Customer. Customer shall not have the right to increase, decrease or cancel an accepted order unless upon prior written consent of Ceres Pharma. Any request from Ceres Pharma to clarify the order shall be promptly answered by Customer.
3.3. With respect to each order, Customer’s responsibilities include: (i) ensuring the accuracy of the order; (ii) providing Ceres Pharma with any information which is necessary in order to enable Ceres Pharma to fulfil the order and, as the case may be, to comply with all labelling and other applicable legal requirements; and (iii) as the case may be, obtaining any necessary import licences, certificates of origin or other requisite documents, and paying all applicable customs, duties and taxes in respect of the importation of the goods.
3.1. Delivery times are provided for information purposes only and are non-binding, unless agreed otherwise in writing. Delays in delivery or exceeding the delivery periods cannot be the occasion for any liability on the part of Ceres Pharma, for any type of damage compensation, or for cancellation of the order. Ceres Pharma retains the right to make partial deliveries, which then constitute partial sales. The partial delivery of an order may not serve as justification for the refusal to pay for the goods delivered. Customer does not have the right to change the delivery date, unless mutually agreed in writing between the parties.
3.2. Unless agreed otherwhise, Ceres Pharma shall deliver the goods Ex-Works (Incoterms 2010) at the location agreed between the parties. Delivery is completed and risk and storage burden transfers when Ceres Pharma places the goods at Customer’s disposal at the aforementioned location, irrespective of whether Ceres Pharma loads the goods onto the truck.
4. Price and payment
4.1. The order will be invoiced at the prices and conditions indicated in the order confirmation or in the price lists communicated by Ceres Pharma. Barring other written agreements, the prices are excluding VAT and the transportation costs are for Customer's expense. Prices may be amended by Ceres Pharma from time to time upon 15 (fifteen) days’ prior written notice to Customer. Orders received and confirmed by Ceres Pharma prior to the modification shall be invoiced at the price in effect before the change.
4.2. Barring other written agreements, the invoices are payable to the bank account communicated by Ceres Pharma within thirty (30) days after the invoice date. Each invoice is considered as accepted in the absence of protest by registered letter within ten (10) days after its receipt. Protest of the invoice does not suspend Customer's payment obligation.
4.3. In the case of full or partial non-payment by the due date, Customer, pursuant to Article 5 of the Act of 2 August 2002 on combatting payment arrears in commercial transactions (as amended periodically), owes default interest, legally and without notice of default, for each already started month, plus fixed compensation of 12% of the invoiced amount, with a minimum of EUR 100, without prejudice to the right of Ceres Pharma to claim greater damage compensation subject to proof of greater actual damage suffered. All collection charges are for the expense of Customer. In the case of non-payment of one invoice by the due date, (i) Ceres Pharma is also entitled to suspend Customer's remaining orders until full payment of the invoice, without preliminary notice of default or damage compensation, and (ii) all other not yet overdue debts by Customer are payable immediately, legally and without preliminary notice of default. Setoff on the part of Customer is explicitly excluded.
4.4. If the trust of Ceres Pharma in the creditworthiness of Customer is undermined by legal actions against Customer and/or demonstrable other events that call into question confidence in the proper execution by Customer of the concluded agreements and/or make such impossible, Ceres Pharma retains the right, even if the goods have already been entirely or partially sent, to suspend the entire order or a part thereof, and to demand suitable guarantees from Customer. If and as long as Customer refuses to provide these, Ceres Pharma retains the right, without Customer being entitled to any damage compensation, to cancel the order or the not yet-delivered part thereof, without prejudice to the right of Ceres Pharma to compensation for the damage. In the case of dissolution of the agreement due to actions of Customer, Customer shall pay damage compensation of at least 12% of the total price, without prejudice to the right of Ceres Pharma to claim greater damage compensation subject to proof of greater actual damage suffered.
5. Retention of title
5.1. The delivered goods remain the property of Ceres Pharma until full payment of the principal, interest, costs and possible damage compensation. Until the moment of full payment, Customer shall attach a sign to the delivered goods that clearly and legibly indicates that the delivered goods are the property of Ceres Pharma. Customer is entitled to sell the goods to its customers on the understanding that Ceres Pharma, due to its retention of ownership of the sold goods, has the exclusive right to require Customer to return the goods to Ceres Pharma until the moment that ownership of the goods transfers to Customer subject to the condition that the goods still exist, and if Customer refuses to do so, to enter the buildings of Customer or of a third party where the goods are located in order to retrieve the goods. Customer agrees that Ceres Pharma may enter its offices within the framework of the above-mentioned objectives. The advances paid by Customer will not be returned and remain available as compensation for possible losses in the case of resale.
5.2. Retention of title does not affect the transfer of risk to Customer in accordance with clause 3.2.
6. Defects and guarantee
6.1. Upon delivery, Customer must check whether the delivered goods exhibit visible damage or defects. Each complaint concerning visible defects, missing goods or a non-compliant delivery must be communicated to Ceres Pharma by registered letter within five (5) days after receipt of the goods, with reference to the invoice number or the packing slip. After this period has expired, the goods are considered to have been accepted without reservation. Late complaints are inadmissible. Complaints do not suspend Customer's payment obligation. Possible return of the goods shall only take place with the prior, written confirmation of Ceres Pharma. Only goods in good condition and in their original packaging may be returned.
6.2. All complaints for hidden defects that are not the result of force majeure, of an incorrect intervention by Customer or by third parties, or due to normal wear, must to communicated to Ceres Pharma by registered letter within one (1) month after discovery of the defect, and in any case within one (1) year after delivery of the goods. The guarantee provided by Ceres Pharma for hidden defects covers only replacement or repair of the delivered good, at Ceres Pharma’s own discretion. No product may be returned or destroyed without Ceres Pharma’s prior written consent.
Ceres Pharma (including its appointees, representatives and/or employees) is only responsible for damage caused due to noncompliance with its contractual obligations, if and insofar as this damage is caused by its fraud, deception or intentional or serious failure. In the event that Ceres Pharma would be held liable for any damage, the maximum liability of Ceres Pharma is always limited to the invoice value of Customer's order, or to the part of the order that the liability concerns. Ceres Pharma may never be held liable for indirect damage, lost profit, missed savings or damage to third parties. Only Customer is responsible for the use it makes of the goods.
8. Force majeure
Ceres Pharma is legally absolved and is not obliged to meet its obligations to Customer due to force majeure, including, but not limited to explosion, fire or flood, protest, riot, civil commotion, acts of terrorism, government action, lock-outs, traffic problems, strikes or other industrial actions, import and export restrictions, embargoes, damage of equipment, late delivery of the goods by Ceres Pharma’s supplier to Ceres Pharma and each incident that results in the goods not being able to be delivered in the normal manner, as well as similar circumstances that affect subcontractors or suppliers of Ceres Pharma. Force majeure never entitles Customer to terminate the agreement or to any form of damage compensation. Force majeure on the part of Customer is explicitly excluded.
10. Export control
Customer represents and warrants that it shall not, directly or indirectly, sell, export, reexport, transfer, divert, or otherwise dispose of any goods (including goods derived from or based on the goods) supplied by Ceres Pharma under the Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States and the European Union, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. This export control clause shall survive termination or cancellation of the Agreement
11.1. Ceres Pharma has the right to terminate the agreement with Customer at any time, with immediate effect, without judicial authorisation, without preliminary notice of default and without payment of any damage compensation, by giving written notice, in the following cases: (i) if Customer, despite a written notice of default in which a period of at least seven (7) calendar days is observed, remains in default with respect to the (timely) fulfilment of one or more obligations resulting from the agreement, (ii) in the case of suspension of payment or (the application for) bankruptcy protection, (iii) in the case of liquidation or discontinuation of the activities of Customer, (iv) if Customer engages in an act of fraud, (v) if (a part of) the assets of Customer are seized, or (vi) in the event of a change of control in Customer or the acquisition of control by Customer over a direct competitor of Customer. Customer shall inform Ceres Pharma of any such change or acquisition of control, without undue delay.
11.2. In case of termination and without prejudice to any other remedies it may be entitled, (i) Ceres Pharma reserves the right to claim compensation for all costs, interest and damages Ceres Pharma would incur, (ii) all claims of Ceres Pharma against Customer are immediately due and payable, and (iii) Ceres Pharma may suspend or to postpone its obligations relating to other running agreements between parties, (iv) Customer must purchase any stock of materials purchased by Ceres Pharma upon the latter’s first request.
12. Intellectual property
12.1. Without prejudice to any written agreement stipulating otherwise, all intellectual property rights made by Ceres Pharma at the expense of Customer and submitted to Customer, remain the property of Ceres Pharma and are never transferred to Customer. Customer shall not analyse, reverse engineer, allow others to analyse or reverse engineer, or in any way attempt to determine the composition of the goods. Customer shall notify Ceres Pharma of (i) any actual, threatened or suspected infringement of Ceres Pharma’s intellectual property rights of which Customer becomes aware, and (ii) any claim by any third party of which it becomes aware that the import or sale of the goods infringes any rights of any third party.
12.2. Customer is not authorized to use the trade name or any brand name of Ceres Pharma, neither does it acquire any property rights which may have been made available to it. Ceres Pharma remains the exclusive owner of any intellectual or industrial property right relating to the manufacturing process employed by Ceres Pharma or goods sold by Ceres Pharma, unless explicitly provided otherwise in writing or mandatory laws.
13.1. If a (part of a) stipulation of the Conditions would be invalid or unenforceable, this shall not affect the validity and enforceability of the other stipulations of the Conditions. In such a case, Ceres Pharma and Customer shall negotiate in good faith, and the invalid or unenforceable stipulation will be replaced by a legally valid and enforceable stipulation that fits as closely as possible the objective and the intent of the original stipulation. The Conditions constitute the entire understanding between the parties with respect to the subject matter thereof, unless modified in writing executed by a duly authorized representative of each party and by referring to the Conditions.
13.2. The rights of each party under the Agreement (i) may be exercised as often as necessary; (ii) are cumulative and not exclusive of rights and remedies provided by law unless specifically excluded; and (iii) may be waived only in writing and specifically.
14. Applicable laws and jurisdiction clause
All agreements, to which the Conditions apply, as well as all other agreements arising out of the Conditions, shall exclusively be governed by and construed in accordance with Belgian law, with exclusion of the 1980 United Nations Convention on Contracts for the International Sale of Goods. All disputes between Ceres Pharma and Customer fall under the jurisdiction of the competent courts of Ghent, Belgium.