1.1 These General Terms and Conditions of Sale (“GTCS”) apply to all sales of Products by Abena notwithstanding any conflicting, contrary or additional terms and conditions in any written agreement between the Parties. No such conflicting, contrary or additional terms and conditions shall be deemed accepted by Abena unless and until Abena expressly confirm the acceptance in writing.
1.2 Abena reserves the right to change these GTCS at any time. Abena will give the Customer a three (3) months notice of any changes.
Offers, Purchase Orders and Order Confirmations
2.1 All written Offers made by Abena are open for acceptance within three (3) calendar days from the date of issue, unless otherwise specifically stated therein, and are subject to the availability of the Products offered.
All Purchase Orders issued by the Customer shall specify as a minimum the type and quantity of Products requested, applicable unit prices, delivery place and requested delivery dates. No purchase order shall be binding on Abena unless and until confirmed in writing.
An Order is not binding upon Abena until Abena has issued an Order Confirmation.
In case of any discrepancy between the Order from the Customer and the Order Confirmation from Abena, the content of the Order Confirmation shall apply.
3.1 The prices shall be those set forth in the Abena Order Confirmation. Prices are, unless otherwise stated, exclusive of taxes, impositions and other charges.
3.2 Payment shall be made within 14 Calendar days from the delivery date or the invoice date, whichever is later, without offset or deduction.
3.3 Customer must submit such financial information from time to time as may be reasonably requested by Abena for the establishment or continuation of payment terms. Abena may in its sole discretion at any time change agreed payment terms without notice by requiring payment cash in advance or cash on delivery, bank guarantee, letter of credit or otherwise.
If Customer fail to pay any invoice within seven (7) calendar days of the due date of payment, Abena may suspend delivery of any purchase order or any remaining balance thereof until payment is made or terminate delivery of any purchase order or any remaining balance thereof by providing written notice of termination within seven (7) calendar days of the expiration of the grace period.
Abena may charge interest from the due date to the date of payment at the rate of 1 ½ % per month. This shall be in addition to, and not in limitation of, any other rights or remedies to which Abena are or may be entitled at law or in equity.
In case of any behaviour on the part of Customer which constitutes breach, in particular in the case of delay in payment or an application for opening of insolvency proceedings, Abena shall be entitled to reclaim the delivered Products. After the Products have been reclaimed, Abena shall be entitled to sell the Products, whereby any resulting income shall be offset against the debts of Customer, minus reasonable sales costs or other associated costs.
If the retention of title is not effective according to the foreign statutory law of the country or state in whose jurisdiction the Products are located, the type of security corresponding to retention of title in this location shall be deemed to have been agreed between the Parties. If the cooperation of the Customer is needed in order for such rights to apply, Customer shall, at the request of Abena, be obliged to undertake all actions which are necessary for the establishment and maintenance of such rights of retention of title.
4.1 Unless expressly stated otherwise in the Order confirmation, all deliveries of Products shall be Free Carrier (FCA) in accordance with Incoterms 2010. The risk of loss of or damage to Products shall pass in accordance with the agreed delivery term.
4.2 The delivery dates of Products shall be those set forth in the Order Confirmation. If Abena fail to deliver the Products within fourteen (14) calendar days of the agreed delivery date, the Customer may terminate the applicable Purchase Order in whole or in part (as to those Products affected by the delay) by providing written notice of termination to Abena within five (5) calendar days of the expiration of the grace period. These shall be the Customers exclusive remedies for late delivery.
Abena reserves the right to make delivery in installments.
Abena shall pack and label all Products in accordance with Abena standard for the specific Product unless otherwise agreed in writing.
5.1 Customer must inspect Products upon receipt at the premises of the Customer. Customer are deemed to have accepted Products delivered unless written notice of rejection specifying the reasons for rejection is received by Abena within three (3) labour days after receipt of the Products.
In case of a latent defect (defects which could not be discovered using ordinary and reasonable care in inspection) the Customer must complain no later than 6 months after the date of the Invoice.
Abena will, at its option and expense; (a) replace the Products with non-defect; (b) modify the Products to make them non-defect or (c) refund the purchase price of the Products.
Neither Party will be entitled to, and neither shall be liable for, indirect, special, incidental, consequential or punitive damages of any nature, including, but not limited to, business interruption costs, loss of profit, removal and/or reinstallation costs, reprocurement costs, loss of data, injury to reputation or loss of customers. Customers recovery from Abena for any claim shall not exceed the purchase price for the Products giving rise to such claim irrespective of the nature of the claim, whether in contract, tort, warranty or otherwise.
The liability of Abena, for all matters, shall be limited to 10 % of the total amount paid and payable to Abena for Products supplied during the 12 months period preceding the date of notice to Abena of a claim.
Both Parties shall without any delay assist each other in investigating and settling any complaints, incidents, near incidents, adverse events, field safety corrective actions and recalls regarding the Products within 10 labour days or less if demanded by public authorities.
In the event either party receiving a complaint from any Competent or Regulatory Authority they will immediately inform the other Party and both parties will agree on a case by case basis which party will respond/correspond with such Competent/Regulatory Authority. Where appropriate, Buyer will provide Abena with returned samples for examination.
The decision to recall a batch of product rests with Abena, but Abena will take any advice from the Buyer into consideration. If patient or user safety is the issue, a recall will always be implemented. Abena will decide the nature and urgency of a recall of product, when appropriate, following discussions the Competent/Regulatory Authority.
Once the decision to recall a batch of Product has been taken, the recall will be initiated by Abena and carried out following Abena´s quality system requirements with reference where appropriate to the European Commission Guidelines on the Medical Device Vigilance System. Abena will inform the Buyer of any action which is required of it and Buyer will provide all reasonable assistance. Buyer is committed to be able to recall products minimum on item number level.
Abena shall have the responsibility to report to the relevant Competent/Regulatory Authorities all serious incidents or near incidents relating to the Product in adherence with the European Commission Guidelines on The Medical Devices Vigilance System. Buyer will provide all assistance as may reasonably be required in relation to such reporting and any subsequent investigation.
8.1 Either party shall be excused from any delay or failure in performance if caused by reason of any occurrence or contingency beyond its reasonable control, including, but not limited to, acts of God, acts of war, fire, insurrection, strikes, lock-outs or other serious labor disputes, riots, earthquakes, floods, explosions or other acts of nature. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the time period equal to the period of such excusable interruption. When such events have abated, the parties’ respective obligations shall resume. In the event the interruption of the excused party’s obligations continues for a period in excess of thirty calendar days, either party shall have the right to terminate the applicable contract(s) of sale, without liability, upon thirty calendar days’ prior written notice to the other party.
The Abena, Abri, Bambo and Delta names, all patents, copyrights and other intellectual property owned by Abena, and inventions and works created by Abena shall at all times remain the property of Abena.
Customer shall neither register nor have registered any of the above mentioned trademarks, trade names, domain names or symbols of Abena (or trademarks, trade names, domain names or symbols similar to those of the Abena). Any registrations of the Abena name and brand by Customer shall promptly be transferred to Abena at the expense of the Customer.
Customer shall immediately stop using the Abena name and brand upon termination of the Parties agreement.
If any Products delivered are held to infringe a third party’s intellectual property right and Abena are enjoined from using same, Abena will, at its option and expense, (a) procure for the right to continue produce and/or sell the Products; (b) replace the Products with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function; (c) modify the Products to make them non-infringing; or (d) refund the purchase price of the Products less a resonable amount for usage. The foregoing states Abena´s sole liability for intellectual property rights infringement.