Terms and Conditions of Sale

v. 3 (January 2020)

1. Preamble
1.1
These terms and conditions of sale (the “Terms and Conditions”) apply to all sales and deliveries of products from Nordic Medical Solutions ApS, Axel Towers, Axeltorv 2F, 5th floor, DK-1609 Copenhagen V, Denmark, CVR-no. 34352542 (“Nordic Medical Solutions”) to the customer (the “Customer”).

1.2
Unless otherwise agreed in writing, all products sold by Nordic Medical Solutions to the Customer are covered by these Terms and Conditions, including but not limited to pharmaceuticals (both over-the-counter and prescription-only medicines), parapharmaceuticals, medical devices, cosmetics and disposables (the “Product(s)”).

2. Orders
2.1
A binding agreement between Nordic Medical Solutions and the Customer is concluded when Nordic Medical Solutions has confirmed the Customer’s purchase order for Products (the “Purchase Order”) by issuing a proforma invoice.

2.2
Any statement contained on any Purchase Order or similar document, which is not specifically confirmed in writing by Nordic Medical Solutions by issuing a proforma invoice, will not be considered an agreement between the parties.

2.3
All proforma invoices are subject to availability of the Products, and Nordic Medical Solutions reserves the right to cancel any proforma invoice or agreement in accordance with clause 14 below.

2.4
A Purchase Order is binding on the part of the Customer.

3. Compliance with applicable laws and regulations
3.1
Nordic Medical Solutions acts as an international wholesaler. Except as specified in these Terms and Conditions, Nordic Medical Solutions does not assume any liability for compliance with legislation applicable to the Customer or the Products in jurisdictions in which the Customer is established or conducts business.

3.2
By accepting these Terms and Conditions the Customer proactively takes the responsibility of being in compliance with and strictly follow current international and local legislation in force for all handling of the Products.

3.3
The Customer warrants that it will obtain and maintain all permits, licenses and authorisations, and make all required notifications to relevant authorities, necessary for the import, marketing and distribution of the Products, including for reviewing and approving all product packages, labels and product information (e.g. the summary of product characteristics and the package leaflet) to ensure compliance with applicable laws and regulations.

3.4
The Customer warrants that it will be responsible for all post marketing obligations (if any), including market surveillance activities, such as reporting of substantial changes to the product specifications and quality systems, reporting of adverse events, handling of complaints, customer notifications and recalls.

3.5
The Customer warrants that any handling obligations or selling restrictions attached to the Products (following from e.g. these Terms and Conditions, the product package or applicable laws and regulations) as to further resale or import of the Products will be complied with, and that the Customer will impose such restrictions on any subsequent customers of the Products.

4. Pricing

4.1
Prices stated in pricelists and previously paid prices are not binding with regard to subsequent Purchase Orders.

4.2
Unless otherwise stated, all prices are exclusive of VAT, custom duties, taxes and the like.

5. Payment
5.1
Unless otherwise agreed in writing, the Products are subject to payment in advance to Nordic Medical Solutions. Shipment of the Products will not be initiated before payment has been received by Nordic Medical Solutions.

5.2
The Products shall remain the property of Nordic Medical Solutions until the Customer has settled all its obligations, including payment in full of the purchase price and any default interest.

5.3
If the Customer fails to pay any sum on the due date for payment, Nordic Medical Solutions is entitled to charge default interest at the rate of 2 per cent per calendar month or fraction of month from the due date.

5.4
The Customer is not entitled to set off any amounts payable to Nordic Medical Solutions, whether stemming from the same or other Purchase Orders.

6. Delivery

6.1
Nordic Medical Solutions must deliver the Products as agreed between the parties to the Customer and perform its obligations in accordance with the proforma invoice and these Terms and Conditions.

6.2
Applicable delivery terms (e.g. ex works or DAP) are set out in the proforma invoice issued by Nordic Medical Solutions. Unless otherwise stated in the proforma invoice, the Products will be delivered ex works (Incoterms 2020) at Nordic Medical Solutions’ appointed facility.

6.3
In case of delay, Nordic Medical Solutions must promptly notify the Customer thereof. Delay is only a material breach of these Terms and Conditions if such delay persists for more than 14 days. In case of multiple shipments the 14 days will be calculated per shipment.

6.4
Nordic Medical Solutions reserves the right to withhold the delivery of the Products if any sum due to Nordic Medical Solutions is overdue or if, in the opinion of Nordic Medical Solutions, the credit standing of the Customer has been impaired for any other reason, until such time as payment is received.

6.5
The sole and exclusive remedy of the Customer in case of delay is a credit or repayment of the purchase sum, at the discretion of Nordic Medical Solutions.

7. Defects
7.1
Except as expressly stated in these Terms and Conditions, Nordic Medical Solutions makes no representation, statement of fact, promise or warranty of any kind or nature, express or implied, with respect to the Product or its merchantability or fitness for a particular purpose.

7.2
Products delivered by Nordic Medical Solutions are deemed to be free of any defects and approved by the Customer, if defects are not reported in writing to Nordic Medical Solutions as soon as they are discovered, and in no event later than 3 days after receipt of the Products by the Customer. The notification to Nordic Medical Solutions must include a full and complete description of the complaint and any action taken in response to the complaint by the Customer.

7.3
The Customer warrants that the Customer, and if the Customer is not entitled to do so, then any subsequent customers who are entitled thereto, will perform an appropriate inspection of the Products delivered by Nordic Medical Solutions immediately on delivery of the Products.

7.4
In the case of justified and properly notified complaints, Nordic Medical Solutions is only be obligated, at its discretion, to reduce the price, repair the defect, replace the Products or take them back and refund the purchase price. These are the sole remedies available for the Customer.

7.5
Products, which Nordic Medical Solutions consents or directs in writing to be returned, will be returned (Incoterms 2020) by the Customer to Nordic Medical Solutions or such other destination directed by Nordic Medical Solutions. Nordic Medical Solutions shall decide means of transportation (e.g. by ship, air, truck) and forwarding agent in each case.

7.6
Nordic Medical Solutions does not accept any returns of pharmaceuticals and is not obligated hereto.

8. Products damaged in transit
8.1
In case Nordic Medical Solutions bears the risk of freight of the Products to the Customer according to the proforma invoice, e.g. if ex works is agreed, any claims for loss, shortage, breakage, leakage or other damage occurring in transit must be notified to Nordic Medical Solutions at info@nordicms.com immediately and no later than 3 days after the Customer has obtained or should have obtained knowledge thereof. Claims received after this time limit are not accepted.

8.2
Notification must be accompanied by relevant pictures of the loss and the report made by the carrier, shortage, breakage or damage. Claims submitted by the Customer without appropriate documentation will be rejected.

8.3
The Customer will cooperate fully and loyally with Nordic Medical Solutions in its efforts to establish a claim against the carrier.

8.4
The sole and exclusive remedy of the Customer in case of damage in transit is a replacement order or repayment of the purchase sum, at the discretion of Nordic Medical Solutions. The Customer disclaims all other remedies (including but not limited to indirect and consequential damages, etc.) in case of damages in transit.

8.5
In any case, Nordic Medical Solutions is not liable for damages in transit where such damages amount to less than EUR 700. The amount is calculated per Purchase Order.

9. Liability
9.1
Nordic Medical Solutions is liable in accordance with the ordinary rules of Danish law with the limitations and exclusions set out in these Terms and Conditions.

9.2
Nordic Medical Solutions is not liable to the Customer for damages for any indirect losses or claims, including but not limited to claims for damages not pertaining to the Products, loss of profit, loss of production, loss of goodwill, operating losses or any other indirect losses.

9.3
Nordic Medical Solutions’ total aggregated liability for any and all claims including damages and/or refund of purchase price is limited to an amount equal to the purchase price paid for the Products to which the claims relate. The aforesaid monetary limitation applies irrespective of the basis of the liability and will to the widest extent possible include claims based on acts of negligence (whether ordinary or gross negligence), strict liability, product liability, etc.

9.4
Any claims, including claims for breach, remediation of defects and delays, will be barred and obsolete 3 months following delivery of the Products, irrespective of whether the Customer was or should have been aware of the existence of the claim.

10.
Third party rights
10.1
The parties agree that Nordic Medical Solutions assumes no liability for the Products’ possible infringement of any intellectual property rights of third parties.

10.2
In the event that the Customer receives notice or is otherwise informed of any claim, suit or demand on account of any alleged infringement of intellectual property rights of third parties relating to the Products, the Customer must promptly notify Nordic Medical Solutions thereof.

11. Product liability

11.1
Nordic Medical Solutions is not liable bodily injury or damage to products caused by the Products, save to the extent such liability cannot be excluded under applicable mandatory law.

11.2
Nordic Medical Solutions is in no event liable for damage to property caused by the Products after delivery has taken place and/or whilst in the possession of the Customer, including but not limited to damage to products manufactured by the Customer or to products of which the Customer’s products form a part.

11.3
Nordic Medical Solutions’ liability will in no event exceed the purchase sum for the Products giving rise to the claim per year, except in relation to personal injury.

11.4
If Nordic Medical Solutions incurs product liability towards a third party that the Customer is rightfully liable for, the Customer shall indemnify Nordic Medical Solution if and to the same extent as the liability of Nordic Medical Solution is limited in accordance with this clause 11, i.e. including but not limited to situations where Nordic Medical Solution is held liable towards the third party although no failure or negligence by Nordic Medical Solution is proven or where such failure or negligence by Nordic Medical Solution is proven, but the damages to be paid by Nordic Medical Solution to the third party exceeds the figures mentioned above.

11.5
Nordic Medical Solutions is entitled to file a claim against the Customer at the same venue as a third party has filed a claim against Nordic Medical Solutions in relation to a dispute concerning product liability arising from the Products.

12. Adverse event reporting and recall
12.1
The Customer must within 5 days from the time when information on an adverse event came or should have come to the Customer’s knowledge provide any available information thereon to Nordic Medical Solutions. In this respect, an adverse event means (i) any malfunction, failure, defect or deterioration in the characteristics and/or performance of a Product, as well as any inadequacy in the labelling or the instructions for use which, directly or indirectly, has, might lead to or might have led to the death of a patient or user or of other persons or to a serious deterioration in their state of health and (ii) any technical or medical reason in relation to the characteristics or performance of a product leading to systematic recall of Products of the same type by the Customer.

12.2
If the Customer becomes aware of any other information regarding the Products, including possible infringement of intellectual property rights, that the Customer believes is reasonably likely to be of importance to Nordic Medical Solutions, it must immediately notify Nordic Medical Solutions.

12.3
Nordic Medical Solutions will notify the Customer immediately in the event of Nordic Medical Solutions’ knowledge about a product recall and will provide instructions on how to assist in returning all affected products. Nordic Medical Solutions may determine the recall measures required from the Customer on a recall-by-recall basis, and the Customer must comply with such measures unless such instructions are in violation of laws and regulations applicable to the Customer. Without further instruction, the Customer must provide to Nordic Medical Solutions any available documentation on seizure notices from public agencies and recall notices sent to the Customer’s subsequent customers. The Customer bears its own cost in connection with recalls of the Products. The Customer provides all reasonable assistance requested by Nordic Medical Solutions in the conduct of a recall.

13. Taxes and other payments

13.1
The Customer is responsible for collection, transfer and payment of any taxes, expenses, charges, duties, fees and other payments (the “Charges”), imposed with regard to the purchase, sale, export, import and other actions with the Products, or, in general, any Charges arising out of, or incidental to, the carrying on of its own business, whether or not these Charges relate to the Products.

14. Extraordinary circumstances

14.1
Nordic Medical Solutions is be liable for any loss or damage caused by delay in the performance or non-performance of any of its obligations under these Terms and Conditions due to extraordinary circumstances outside the reasonable control of Nordic Medical Solutions.

15. Confidentiality

15.1
The parties treats all information and documents, including prices and other delivery terms, received from the other party as well as other information relating to the business relationship between the parties as confidential and shall not use such information, or disclose it to any third party, except insofar as strictly necessary for the performance of the parties’ obligations towards each other or if expressly required by law. This obligation remains in force for 5 years following the latest purchase made by the Customer.

16. Governing law and venue
16.1 These Terms and Conditions, including disputes regarding their existence or validity, are governed by Danish law, irrespective of any conflict of laws rules, which could otherwise result in the application of the laws of another jurisdiction to the dispute, and excluding any international private law rules such as the United Nations Convention on Contracts for the International Sale of Goods (CISG).

16.2
Any dispute arising out of, or in connection, with this these Terms and Conditions, including disputes regarding their existence or validity, must be settled by the ordinary Danish courts, and if possible before the court of Frederiksberg as the court of first instance.

16.3
Notwithstanding clause 16.2, as regards Customers from countries which are not a party to a mutual convention on recognition of judgements with Denmark and which are a party to the New York Arbitration Convention, any dispute arising out of, or in connection with, these Terms and Conditions must be finally settled by arbitration administrated by The Danish Institute of Arbitration in accordance with the rules of arbitration procedure adopted by The Danish Institute of Arbitration and in force at the time when such proceedings are commenced. The Institute of Arbitration will appoint one arbitrator, who will be the chairman of the arbitral tribunal. The place of arbitration shall be Copenhagen, Denmark.

16.4
Notwithstanding the above, Nordic Medical Solutions will always be entitled to initiate legal proceedings at the home jurisdiction of the Customer.