FRESCO FARMA B.V. GENERAL TERMS AND CONDITIONS OF SALE
Effective from and last updated on: 15 April 2020
Capitalized terms used in these general terms and conditions of sale shall have the meanings set out below:
“Agreement” every agreement, including framework agreements, Orders and agreements arising from them, which are concluded between Fresco Farma and the Customer;
“Article(s)” provision(s) in these Terms and Conditions of Fresco Farma;
“Customer” the party that places Orders and to which Fresco Farma sells and/or delivers Products, including resellers;
“Drug(s)” all medicines supplied by Fresco Farma;
“Fresco Farma” Fresco Farma B.V., a limited liability company, with its offices on Weg en Bos 54 in (2661 GZ) Bergschenhoek and registered with the Chamber of Commerce under number 08177350;
“GDP Guidelines” the European good distribution practice guidelines for the correct distribution of medicines and related products;
“Instructions For Use” the written instructions made available to the Customer by Fresco Farma in relation to the proper use of the Products;
“Medical Devices” all goods offered by Fresco Farma that are intended to be used to detect, treat, alleviate or prevent diseases;
“Order(s)” an order placed in writing by the Customer for the purchase and delivery of Products;
“Party/Parties” Fresco Farma or the Customer, or Fresco Farma and the Customer;
“Personnel” employees of a Party or of its group companies;
“Product(s)” all goods offered by Fresco Farma, including, but not limited to, Drugs and Medical Devices;
“Terms and Conditions” these general terms and conditions of sale in relation to the sale and delivery of Products;
“Third Party/Parties” legal or private persons engaged by or on behalf of a Party in the context of the full or partial execution of an Agreement, these legal or private persons being other than that Party or Parties – or their Personnel;
“Working Days” Monday to Friday, with the exception of official national holidays in the Netherlands.
These Terms and Conditions apply to and form part of all offers by Fresco Farma, the Agreement and all other acts (including legal acts) between Fresco Farma and the Customer.
- The Terms and Conditions apply to every offer by Fresco Farma and to every Agreement concluded between Fresco Farma and the Customer.
- The General Terms and Conditions applied by the Customer, under any denomination whatsoever, are not applicable and are hereby expressly rejected by Fresco Farma.
- In these Terms and Conditions, ‘written’ is also understood to mean by email.
- Fresco Farma reserves the right to change these Terms and Conditions from time to time.
- Derogations from these Terms and Conditions apply only if and to the extent that they have been explicitly confirmed in writing by Fresco Farma.
- CONCLUSION OF AGREEMENTS
- All offers (including price offers) by Fresco Farma are always non-binding, and they can be withdrawn or changed by Fresco Farma at any time.
- An Agreement is concluded if the Customer has placed an Order with Fresco Farma and Fresco Farma has accepted this Offer in writing.
- Fresco Farma is free at any time to refuse Orders and/or follow-up orders from the Customer on reasonable grounds, without the Customer being able to assert any claim for damages against Fresco Farma.
- Unless otherwise agreed in writing, the prices indicated by Fresco Farma or agreed with Fresco Farma shall be net and therefore, among other things, exclude VAT, transport costs and, unless stated otherwise, exclude import and export duties, excise duties and other taxes or levies.
- The manner of packaging will be determined by Fresco Farma.
- An increase in legal price-determining factors, including an increase in taxes, excise duties, import duties or other government levies, will always be passed on automatically.
- Unless expressly agreed otherwise in writing, the prices are Ex Works (Incoterms 2020). Ex Works means the address of one of Fresco Farma’s warehouses, as specified in the order confirmation.
- Fresco Farma reserves the right to correct the prices that it has provided in the case of mistakes, including printing and typing errors or omissions. Fresco Farma shall not be liable for any damage suffered by the Customer as a result of such errors or omissions.
- Payments shall be made in accordance with the method of payment indicated during the order process.
- Fresco Farma is entitled at any time to require that the Customer pay for the Products in advance. To the extent that advance payment is required, Fresco Farma shall not be obliged to deliver the Products until payment has been received by Fresco Farma.
- Fresco Farma is entitled to execute the Agreement in instalments and, in connection with this, to issue partial invoices. For each delivery or partial delivery of Products, Fresco Farma is entitled to require full or partial advance payment or cash payment.
- Complaints do not suspend the payment term.
- In the event of late payment, the Customer shall be in default by operation of law and shall owe the statutory commercial interest (as referred to in Section 6:119a of the Dutch Civil Code) on the outstanding invoice amount with effect from the invoice date. If the Customer fails to pay within the agreed term and is therefore in default, all outstanding amounts owed by the Customer to Fresco Farma shall be immediately due and payable from that moment on.
- The Customer is obliged to pay all extrajudicial and judicial costs (including costs of legal assistance) that Fresco Farma has had to incur in connection with the fact that the Customer, without being entitled to do so, has failed to fulfil its obligations on time and properly or if Fresco Farma is found to be in the right, either fully or partially, in legal proceedings. This also applies to the extent that the legal costs exceed the amount granted by the court or if the Customer can still appeal against the decision in question. The extrajudicial costs total at least the amount that can be calculated according to the most recent graduated scale of Extrajudicial Collection Costs (in Dutch: Buitenrechtelijke Incassokosten) (BIK).
- At Fresco Farma’s first request, the Customer shall provide security, additional or otherwise, for the fulfilment of its present and future payment obligations. Fresco Farma is entitled to decide which form of security is to be provided by the Customer. If the Customer refuses to make the requested payments as referred to in Article 4.1 and/or to provide security or additional security to the satisfaction of Fresco Farma, Fresco Farma is entitled to suspend execution of the Agreement, without prejudice to its legal right of suspension.
- Payments made by the Customer first serve to reduce costs and interest due (in that order) and then to reduce principal amounts, with older claims taking precedence over new ones.
- The Client is not entitled to set off its debt to Fresco Farma against a claim it has against Fresco Farma, unless Fresco Farma has agreed in writing to an intended set-off.
- The Customer is not entitled to suspend its payment obligation(s) with regard to delivered Products.
- Fresco Farma retains ownership of all delivered Products until the Customer has fulfilled all its payment obligations towards Fresco Farma.
- COMPLAINTS AND GUARANTEE
- Fresco Farma is not bound by images, descriptions, designs, catalogues, advertising material and offers. All statements by Fresco Farma regarding numbers, dimensions, weights or other indications are made with the utmost care. However, Fresco Farma cannot guarantee that there will be no deviations.
- The Customer is obliged to inspect the Products (including packaging) immediately after these have been made available to the Customer. Any shortcomings or damage to the Products found during this inspection shall be reported in writing by the Customer to Fresco Farma within 48 (forty-eight) hours, failing which the Customer will not be able to invoke the shortcomings or damage.
- The Customer must notify Fresco Farma in writing of any shortcomings that the Customer was unable to establish in the inspection referred to in the previous paragraph. In any case, the Customer has to have reported the shortcomings within seven (7) calendar days after the Products were made available to it. If it fails to make a notification in writing by the deadline, the Customer cannot invoke the shortcomings.
- A notification as referred to in this Article should give a clear and precise description of the shortcomings that the Customer is invoking. The submission of such a notification does not release the Customer from its payment obligation.
- On the basis of the documentation provided to it, Fresco Farma verifies that the Products that are qualified as Medical Devices comply with the specifications in accordance with the required CE certification. A guarantee with regard to Medical Devices is limited to the manufacturer’s guarantee. With regard to the Products that are qualified as Drugs, Fresco Farma guarantees that it will act in accordance with the applicable GDP Guidelines. Fresco Farma does not provide other guarantees with regard to the Products, including but not limited to quality, conformity and/or intended effect of the Drugs. The relevant provision of Book 7, Title 1 of the Dutch Civil Code shall not apply to the extent that it is not of a mandatory legal nature.
- The guarantee provided by Fresco Farma cannot be invoked if:
- shortcomings or damage to the Products have arisen as a result of use other than that which can be expected under normal circumstances, including but not limited to incorrect transport, storage and custody and/or if shortcomings or damage have been caused in whole or in part by external causes such as lightning, water damage, fire damage and the like;
- shortcomings or damage are the direct or indirect result of acts or omissions of the Customer, including but not limited to shortcomings and damage resulting from the fact that the Customer does not use the Products in accordance with the Instructions For Use; or
- the Customer has had the Products processed or repaired by third parties without Fresco Farma having agreed to this in writing.
- If a notification as referred to in Article 5.4 is justified in the opinion of Fresco Farma, Fresco Farma shall, at its discretion, proceed to:
- replace the Products;
- credit the payment paid by the Customer for the Products; or
- provide the Customer with financial compensation which Fresco Farma considers reasonable in view of the nature and scope of the complaint and all additional circumstances.
- Legal actions relating to complaints and notifications as referred to in this Article must be instituted within one (1) year after the Customer has notified Fresco Farma of the complaint in accordance with this Article.
- DELIVERY AND TRANSFER OF RISK
- Unless otherwise agreed, Fresco Farma shall endeavour to deliver the Products ordered via the online shop within the Netherlands on the Working Day following the written order confirmation sent by Fresco Farma. If the Customer has placed an Order in a manner other than via the online shop, delivery shall take place in accordance with the agreements made between the Parties in writing.
- In consultation, the Products may be shipped to the Customer after delivery in a manner and under terms and conditions to be agreed upon.
- The provisions of Article 6.1 do not apply if, in Fresco Farma’s opinion, the Order is excessive on the basis of quantity compared to the usual quantities in orders placed with Fresco Farma. In such situations, the term for the execution of the Agreement shall be determined in consultation between the Parties.
- An agreed or stated term for the execution of the Agreement shall be regarded as a target term and shall never be regarded as a deadline. Therefore, the mere fact of exceeding a term does not constitute default on the part of Fresco Farma and cannot therefore lead to any liability for damages on the part of Fresco Farma. The Agreement cannot be terminated because a term has been exceeded, unless Fresco Farma does not execute the Agreement within a reasonable term after the expiry of a reasonable term given in writing by the Customer.
- Fresco Farma is not obliged to deliver until it has received the necessary information from the Customer to be able to deliver.
- The delivery takes place in accordance with the written agreements between the Parties. If there are no written agreements between Parties regarding the delivery, the time of delivery shall be deemed to be delivery Ex Works (Incoterms 2020).
- With regard to the number of Products to be delivered, the number recorded by Fresco Farma is binding. The Products are delivered on the basis of the details as provided by the Customer when placing the Order. The Customer guarantees that these details, such as name, address, contact person, etc., are correct. In the event of a change in these details, the Customer shall inform Fresco Farma of this without delay.
- In the event that the Customer does not take delivery (on time) of the Products offered for delivery in accordance with the Agreement for whatever reason, all reasonable costs incurred by Fresco Farma in connection with the delivery, including any costs of transport, custody and storage, shall be borne by the Customer.
- LIABILITY FOR DAMAGE AND INDEMNIFICATION
- Fresco Farma only accepts liability as a result of a violation of the guarantees referred to in Article 5.5 and provided by Fresco Farma.
- Fresco Farma is not liable for any damage on the part of the Customer as a result of a failure, whether or not attributable, on the part of Fresco Farma to fulfil any obligation under the Agreement and/or the law or any other act directly or indirectly related to the Agreement, including but not limited to any act that is unlawful within the meaning of Section 6:162 of the Dutch Civil Code, unless the damage suffered by the Customer is directly related to (i) Medical Devices sold and supplied by Fresco Farma which do not meet the specifications with which the Medical Devices must comply on the basis of CE certification and which Fresco Farma should reasonably have identified on the basis of the documentation provided to it, (ii) acts contrary to the applicable GDP Guidelines on the part of Fresco Farma with respect to Drugs or (iii) any intentional or deliberately reckless act (In Dutch: opzet of bewuste roekeloosheid) on the part of Fresco Farma management staff only.
- If and to the extent that it is established in law that Fresco Farma is liable for damage for whatever reason, such liability shall be limited per claim or event to an amount equal to the invoice value, exclusive of turnover tax, of the Products delivered by Fresco Farma to which the liability relates, except to the extent that the actual coverage of Fresco Farma’s liability insurance allows more extensive liability. Any compensation shall be limited to the amount to be paid out by the liability insurance of Fresco Farma, increased by the excess.
- A series of related claims or events shall be deemed to constitute a single claim or event.
- The Customer must notify Fresco Farma in writing of the damage it has suffered as soon as possible but at the latest within seven (7) calendar days after the damage has occurred or has become known. Damage that has not been reported within this period shall not be eligible for compensation. In any case, all legal claims of the Customer against Fresco Farma shall lapse after one (1) year, to be counted from the day on which the relevant obligation under the Agreement became due and payable or the event causing the damage occurred.
- The Customer indemnifies Fresco Farma against all claims by third parties on any basis whatsoever relating to the Products delivered by Fresco Farma to the Customer, except insofar as the Customer demonstrates that a claim by a third party is in no way related to any circumstance within the Customer’s sphere of risk.
- Independently of the Customer’s own obligation to comply, the Customer shall ensure – and at all times maintain – adequate insurance in order to be able to comply fully with the Customer’s indemnification obligations towards Fresco Farma referred to in Articles 7.6, 8.3 and 12.7. The Customer shall inform Fresco Farma regarding its insurance policies at the first request. If the insurance in question is cancelled or the cover is not (or no longer) sufficient, the Customer shall immediately inform Fresco Farma.
- REGULATIONS AND INSTRUCTIONS
- The Customer guarantees that it shall act in accordance with all applicable legislation and regulations and that it is in possession of all the licences necessary for executing the Agreement.
- With regard to the Products delivered by Fresco Farma, the Customer is obliged to comply with all applicable instructions for use, safety regulations and government and other official regulations. All fines, damages and/or other consequences arising from the Customer’s failure to observe such regulations and instructions are for the Customer’s account.
- The Customer indemnifies Fresco Farma against all claims by third parties, including government bodies, which result from the Customer violating its obligations as referred to in Articles 8.1 and 8.2.
- If, on the basis of government regulations and/or on the basis of regulations of other competent authorities, changes are required to be made to a Product at the start of the Agreement or at a later time in connection with the purpose for which the Customer wishes to use or has used a Product, the costs associated with this shall be for the account of the Customer.
- FORCE MAJEURE
- In the event of force majeure on the part of Fresco Farma, both Fresco Farma and the Customer have the right to terminate the Agreement in whole or in part with immediate effect and without judicial intervention, without creating any right to compensation. Force majeure on the part of Fresco Farma is understood to mean at least:
- circumstances relating to persons, raw materials and/or materials which Fresco Farma uses or is in the habit of using in the execution of the Agreement, which are of such a nature as to render the execution of the Agreement impossible or so burdensome and/or disproportionately expensive for Fresco Farma that fulfilment of the Agreement by Fresco Farma can no longer or not immediately be required;
- the fact that Fresco Farma does not receive, or does not receive on time or properly, a performance which is of importance in connection with the performance to be provided by Fresco Farma itself;
- outbreak of diseases;
- strikes, sit-ins, import and export restrictions, government measures;
- fire, water damage, flooding and extreme weather conditions;
- war and war risk, riots, wilful damage;
- disruptions or breakdowns in the power and/or telecommunication facilities and the like.
- In the event of force majeure on the part of a Party, this Party shall inform the other Party as soon as possible of the force majeure situation. At the request of the other Party, the Party shall furnish proof of the event that caused the force majeure.
- SUSPENSION AND TERMINATION
- Fresco Farma is entitled to suspend the Agreement in whole or in part or to terminate the Agreement in whole or in part by means of a written statement without judicial intervention and with immediate effect (without Fresco Farma being liable to pay any compensation) in the event of:
- a failure by the Customer to fulfil one or more of its obligations under the Agreement and/or these Terms and Conditions;
- granting of a provisional or permanent suspension of payment to, declaration of bankruptcy by, or a creditors’ offer from the Customer; or
- withdrawal from one of the Parties of licences that are necessary for the execution of the Agreement.
- All claims which Fresco Farma may have or may obtain against the Customer in the cases referred to in Article 10.1 above shall be immediately due and payable in full.
- An appeal for termination of the Agreement by the Customer must be made in writing and the Customer must clearly state the ground(s) for termination.
- The Customer may not cancel an Order that it has placed once the Order has been accepted by Fresco Farma.
- CONTRACT TAKEOVER
- The Client hereby authorizes Fresco Farma in advance to transfer in whole or in part to a third party or third parties the Agreement and the ensuing rights and obligations by means of contract takeover as referred to in Section 6:159 of the Dutch Civil Code and/or the fulfilment of the obligations that arise for Fresco Farma from the Agreement.
- The Customer is not permitted to transfer all or part of the rights and obligations and/or the fulfilment of its obligations arising from the Agreement and these Terms and Conditions to third parties without Fresco Farma’s prior written consent.
- PRODUCT RECALLS
- Fresco Farma is entitled to initiate a product recall if the Products delivered do not meet the agreed requirements.
- If Fresco Farma initiates a product recall, the Customer shall at all times and immediately follow Fresco Farma’s instructions relating to the recall of Products. The Customer is not permitted to make any statements regarding the possible defects without Fresco Farma’s prior written consent.
- After discovering a defect in the Products, the Customer is obliged to do everything in its power to prevent damage or, if this is not possible, to limit the damage, including, if relevant, the recall of the Products in the event that the Customer has resold the Products in the context of resales.
- As soon as the Customer has the intention to recall the Products, it shall immediately inform Fresco Farma of this decision. Fresco Farma shall cooperate with the Customer’s product recall to the extent that this can reasonably be expected of Fresco Farma.
- If the Products delivered do not meet the agreed requirements and Fresco Farma or a manufacturer has initiated a product recall as a result, Fresco Farma shall at its discretion proceed with the following with regard to the Products recalled and returned:
- replacing the Products;
- crediting the payment paid by the Customer for the Products; or
- providing the Customer with financial compensation which Fresco Farma considers reasonable in view of the nature and scope of the complaint and all additional circumstances.
- Fresco Farma shall not be liable for costs, losses or damage, including fines, incurred by the Customer in the event of a recall of the Products, insofar as the damage is caused by an attributable failure on the part of the Customer. An attributable failure in any event means the failure to follow instructions provided by Fresco Farma with regard to the recall of the Product.
- The Customer indemnifies Fresco Farma for all direct costs, losses and damages, including fines imposed by local authorities or other public authorities, on the part of Fresco Farma which are directly or indirectly the result of the Customer’s failure to comply with one of the aforementioned instructions or which are otherwise the result of the Customer’s failure to comply with any obligation (including legal obligations) with regard to the recall of the Products.
- INVALIDITY OF ONE OR MORE PROVISIONS
- The invalidity of a provision of the Agreement and/or of these Terms and Conditions has no consequences for the validity of the remaining provisions of the Agreement and of these Terms and Conditions.
- If one or more provisions of the Agreement and/or these Terms and Conditions are invalid, or unacceptable under the given circumstances according to standards of reasonableness and fairness, a provision shall apply between the Parties that is acceptable taking all circumstances into account.
- If Fresco Farma has permitted derogations from these Terms and Conditions for a shorter or longer period of time, this does not affect Fresco Farma’s right to demand immediate and strict compliance with these Terms and Conditions. The Customer cannot derive any rights from the fact that Fresco Farma has applied the Terms and Conditions flexibly.
- These General Terms and Conditions have been drawn up in Dutch and in English. In the event that the Dutch text is not in accordance with the English text, the Dutch text shall be binding.
- CHOICE OF LAW AND FORUM
- The legal relationship between Fresco Farma and the Customer is exclusively governed by Dutch law, with the exclusion of the Vienna Sales Convention.
- All disputes between the Customer and Fresco Farma shall be settled by the competent court in Rotterdam. However, if Fresco Farma is acting as plaintiff, it is entitled to bring the dispute before the court of the Customer’s domicile or place of business, in derogation of the above.