EU-wide distribution & logistics
1 General
These General Terms and Conditions of Sale (“Terms”) are applicable to all offers, orders and agreements between Swiss Point of Care B.V. (“SPOC”) and the contractual counterparty of SPOC (“Buyer”) with regard to the products to be sold and delivered to Buyer by SPOC (the “Products”).
2 Ordering and delivery
2.1 Buyer may place orders for the Products from time to time by issuing a written purchase order to SPOC, which identifies the Products, quantities and requested date for shipment. SPOC endeavours to confirm the order in writing to Buyer within five days upon receipt of such order. Upon confirmation by SPOC the order shall be final.
2.2 The time of delivery will be stated in the order confirmation as submitted by SPOC. SPOC shall use commercially reasonable efforts to meet the time of delivery.
2.3 The term of delivery shall be Ex Works (Incoterms 2020) (at the location in the Netherlands as designated by SPOC), except if otherwise agreed in writing in the order confirmation or the sales term sheet (agreement).
2.4 All Products shall remain the property of SPOC, until all claims that SPOC has or will have against Buyer have been paid in full.
2.5 All Products delivered must be carefully checked immediately upon delivery by or on behalf of SPOC at Buyer’s premises. All Products delivered will be deemed accepted by Buyer as conforming to the agreement, and Buyer will have no right to revoke any acceptance, unless Buyer has notified SPOC in writing of any defects within 48 hours upon delivery. After receipt of a notice of non-conformity from Buyer, SPOC employees may come to inspect the Products on site. Buyer shall cooperate fully in this regard.
2.6 In case that any of the delivered Products are found to be non-conforming to the agreement, SPOC shall use its commercially reasonable efforts to replace such non-conforming Products with conforming Products. If SPOC is not able to replace the non-conforming Products with conforming Products, then SPOC shall refund (or issue a credit note to Buyer for) the amounts received from Buyer for such non-conforming and unreplaced Products. This shall be Buyer’s sole and exclusive remedy with respect to non-conforming Products.
3 Prices and payment
3.1 Unless agreed otherwise in writing between Buyer and SPOC, all prices are in euros. Prices do not include any taxes (VAT), duties or other governmental fees and SPOC may add these to the prices or invoice separately.
3.2 SPOC reserves the right to adjust the prices by giving written notice to Buyer in the event of an increase in cost-determining factors, such as market conditions, fluctuations in exchange rates, prices of raw materials, labour costs or government measures, provided that these increases occurred or the measures were taken before confirmation of the order by SPOC. However, in case of an increase of airfreight rate by more than 10% at any time, these costs will be passed on to Buyer, even if this price increase has occurred after an order was placed by Buyer or after confirmation of the order by SPOC.
3.3 All payments must be made by Buyer to SPOC in advance, unless agreed otherwise in writing. Payments must be made without deduction or setoff.
3.4 If Buyer fails to timely pay any sums due to SPOC under any agreement, SPOC – without prejudice to any other right or remedy it may have – may cancel or suspend any (further) delivery to Buyer under any order or agreement.
4 Intellectual Property
4.1 Buyer acknowledges that all intellectual property rights in and to the Products (including but not limited to the Trademarks, specifications, composition, packaging and/or production method) (the “IPR”) are exclusively owned by and reserved to SPOC or its designee or the manufacturer or SPOC’s seller of the Products. The “Trademarks” shall include any trademark/name, emblem, logo or symbol as from time to time owned and/or used by SPOC, including Swiss Point of Care.
General Terms and Conditions of Sale
Version December 2021
4.2 Buyer shall not (nor authorize any third party to):
4.2.1 modify all or any part of the Products or their packaging without the prior written consent of SPOC, except to the extent that this is required in accordance with applicable law;
4.2.2 alter or remove from the Products any of the Trademarks, or numbers or other means of identification used on or in relation to the Products;
4.2.3 create any product similar to the Product;
4.2.4 use any of the Trademarks in any way which might prejudice their distinctiveness or validity or the goodwill of SPOC;
4.2.5 use any trademarks or trade names which so resemble any of the Trademarks as to be likely to cause confusion or deception;
4.2.6 use any of the Trademarks as part of the Buyer’s corporate or business name; or
4.2.7 apply for or register any IPR in relation to the Product (including but not limited to the Trademarks, specifications, composition, packaging and/or production method), or any product or technology which is the same as or similar thereto or a derivative thereof, but if the Buyer applies for or registers anything in breach of this clause, it shall hold the benefit of the application or the registration on trust for SPOC and transfer it to SPOC on demand.
4.3 Except to the extent explicitly provided otherwise in these Terms, Buyer shall not acquire any IPR or any other proprietary rights whatsoever from time to time owned or used by SPOC in connection with the Product, its specification, the Trademarks, packaging, composition and/or production method.
4.4 Buyer shall promptly and fully notify SPOC of any actual, threatened or suspected infringement of any of SPOC’s IPR which comes to the Buyer’s notice, or of any claim or threatened claim by any third party that the storage, transport, use or sale of the Products infringes any (intellectual property) rights of any other party. In the event of any such infringement or claim:
4.4.1 Buyer shall at the request and expense of SPOC take all steps reasonably necessary to assist SPOC in taking or resisting any proceedings in relation to the infringement or claim;
4.4.2 SPOC shall have sole control over any proceedings or negotiation in connection with the infringement or claim.
5 Confidentiality and publicity
5.1 If and to the extent that either party discloses to the other any confidential information or data (whether technical, commercial or otherwise) related to its organization and/or business operation, the other party shall not use or disclose any such information for any purpose whatsoever other than the purposes of its operation undertaken pursuant to the agreement between SPOC and Buyer, unless disclosure or publication is required by law.
5.2 In addition, Buyer shall not use or disclose any information with regard to (the specifications, technical features, composition and/or production method of) the Product.
5.3 Either Party may disclose confidential information to such of its employees who reasonably require the same. However, prior to disclosure, it shall inform each of its employees to whom such information is disclosed of the restrictions contained in this clause and shall ensure that each such employee shall observe such restrictions.
5.4 No press release or other written or oral public announcement will be issued or made directly or indirectly by Buyer regarding SPOC and/or any agreement with SPOC, unless SPOC provides its prior written consent.
6 Conditions of Resale.
6.1 In the event that Buyer resells Products or incorporates Products in offerings to its customer, Buyer shall ensure that all its customers and/or end users of Products comply with all relevant Buyer’s obligations under the agreement and these Terms, and that the terms of its agreement with each of its customer(s) or end user(s) are consistent with the agreement between SPOC and Buyer and these Terms.
6.2 Some Products may not allowed to be sold to individual consumers in certain countries. It is Buyer’s responsibility to ascertain this and to comply with any regulations in this regard.
General Terms and Conditions of Sale
Version December 2021
6.3 Products shall be advertised, marketed and sold by Buyer only under the SwissPointOfCare Trademark. Buyer shall not alter, remove or modify any of the Product literature or the packages or boxes used for the Products, without SPOC’s prior written consent. Buyer may affix labels or other indices on Products it distributes to identify it as the Buyer of the Products, so long as such labels do not cover and are not inconsistent with SPOC’s Trademarks and Product Literature. Buyer shall not re-package or re-label any Products in any manner, unless expressly approved by SPOC in writing.
7 Disclaimer and Liability
7.1 The Products are sold “as is”. SPOC specifically disclaims all warranties, whether express or implied, including, but not limited to warranty of merchantability, fitness for a particular purpose, and noninfringement of third-party rights.
7.2 Buyer acknowledges that health monitors or health tests purchased from SPOC are not substitutes for medical consultation and do not establish a medical diagnosis. No rights can be derived from any measurement or result of such monitors or tests.
7.3 SPOC’s liability does not extend to any Product that has been altered in any way, or to any Product that has been handled in a manner contrary to the Product data sheet, label, or literature.
7.4 SPOC shall not be liable for any loss of profit or revenue, consequential or indirect loss or any economic loss whatsoever and howsoever caused arising out of or in connection with the Product or any agreement between SPOC and Buyer. In no event shall SPOC’s liability exceed the purchase price of the non-conforming Product giving rise to any claim.
7.5 The liability of SPOC in respect of the Products is further restricted in the same way the manufacturer or SPOC’s seller of the Products restricted its liability towards SPOC.
7.6 The liability restrictions as included in these provisions do not apply if and to the extent that the damage can be attributed to the wilful intent or deliberate recklessness of managerial staff of SPOC.
7.7 Buyer shall indemnify, defend, and hold harmless SPOC, its directors, officers, employees (the “SPOC Indemnified Parties”) from and against any losses, liabilities, costs, claims or proceedings arising out of or resulting from (a) the marketing (including without limitation advertising and packaging), distribution, or sale of the Products by or on behalf of Buyer, or (b) the negligence or misconduct of Buyer or its directors, officers, employees and agents, or (c) the breach by Buyer of its obligations under any agreement with SPOC, (d) any measurement or result of health monitors or health tests purchased from SPOC, or (e) any modifications, alterations, or mishandling of the Products by Buyer.
7.8 Each Party shall maintain comprehensive general liability insurance and product liability insurance against claims regarding its activities contemplated by the agreement between SPOC and Buyer, in such amounts as customarily for similar activities.
8 Exclusivity
8.1 During the term of the agreement between Buyer and SPOC, Buyer shall not, either directly or indirectly, purchase the Products directly from the manufacturer thereof or any other reseller thereof without prior written approval of SPOC.
9 Miscellaneous
9.1 SPOC will not be liable, nor will SPOC be in breach of its obligations towards the Buyer for any delay, non-delivery or default by SPOC due to labour disputes, transportation delays, shortage of Products or materials to produce the Products, supply chain issues, fires, accidents, Acts of God, or any causes outside of SPOC’s control. SPOC shall notify Buyer as soon as possible upon realization that it will not be able to deliver the Products in accordance with the agreement.
9.2 Unless explicitly stated otherwise these Terms may only be amended in writing by both parties.
9.3 If any part of these Terms is determined to be invalid or illegal, then that part shall be limited or curtailed to the extent necessary to make such provision valid, and all other remaining terms of the agreement shall remain in full force and effect.
9.4 SPOC expressly rejects the applicability of any general terms and conditions of Buyer, even if (future) reference is made to such terms and conditions in e-mails, orders or any other (digitial) document.
9.5 These Terms and all orders, offers and agreements between SPOC and Buyer shall be governed by the laws of the Netherlands. Any dispute in connection between SPOC and Buyer shall exclusively be resolved by the competent court of Amsterdam, the Netherlands.