GENERAL CONDITIONS OF PURCHASE AND SALE

General Purchase Conditions

1. General – scope of application

1.1. Our General Purchase Conditions apply exclusively to all contracts regarding the supply of goods between the Supplier and us, RubiePharm Arzneimittel GmbH.

1.2. We do not recognize any terms and conditions of the Supplier, especially its general sales conditions deviating from or conflicting with our General Purchase Conditions, unless we have explicitly agreed to their validity in writing or in text form.

1.3. Our terms and conditions shall also apply if we unconditionally accept the Supplier’s delivery being aware of conflicting or deviating terms and conditions of the Supplier.

1.4. All agreements made between us and the Supplier in performance of the delivery of goods by the Supplier shall be set down in writing or in text form.

2. Assignment

2.1. Without our consent (in writing or in text form), the Supplier may not, in whole or in part, assign any claims to third parties.

3. Delivery Date, Delivery and Product Labelling

3.1. The delivery date stated in the order is binding.

3.2. The Supplier is obliged to inform us in writing or in text form if circumstances occur or become apparent which show that the stipulated delivery time cannot be met.

3.3. In the event of delayed delivery, we shall be entitled to the statutory rights available. In particular, we shall be entitled to damages and rescission after a fruitless expiry of a reasonable period of grace.

3.4. Unless otherwise explicitly agreed in writing, delivery shall be made in accordance with the Incoterms specified in our order. The Incoterms in their latest version shall apply.

3.5. Regarding import goods the shipping documents shall record whether the goods are duty-paid or duty-unpaid.

3.6. Our unconditional acceptance or payment of late delivery does not constitute any waiver of our claims for compensation regarding such late delivery.

4. Quality assurance – inspection during contractual execution

4.1. The Supplier shall carry out and maintain an effective quality assurance system and shall furnish evidence thereof on request.

4.2. We shall be entitled to examine this aforementioned quality assurance system and the appropriate performance under the contract by the Supplier by ourselves or by third parties authorized by us. Our contractual and statutory rights shall not be affected by such examinations.

5. Quality of the goods – inspection and liability for defects

5.1. We will inspect the goods within a reasonable time for any quality and quantity deviations and give notice to the Supplier of any deviations without undue delay.

5.2. Our payment shall not be considered an acknowledgment of a contractual performance of the Supplier.

5.3. We are entitled, without reservation, to the statutory warranty claims. We shall be entitled in any event to demand that the Supplier either remedies the defect or delivers an item that is free from defects. The right to claim damages is expressly reserved.

5.4. We are entitled to remedy the defect at the expense of the Supplier if the latter is in delay.

5.5. The Supplier guarantees that the goods supplied are true to samples and comply with the contractual agreements and the agreed product specifications.

5.6. Unless any specific quality criteria are agreed, the goods must be of merchantable quality at least.

5.7. The Supplier guarantees in particular the authenticity and accuracy of its delivery documents and the accompanying certificates and documents.

5.8. As far as the goods are concerned, the Supplier guarantees proper and complete control throughout the production process.

5.9. If requested, the Supplier shall be obliged to immediately provide us with the necessary information (official complaints, customer complaints, etc.) regarding certain goods. The assertion of further claims against the Supplier remains unaffected.

5.10. If the subject matter of the Supplier’s delivery includes any packaging material used and deployed by us, the Supplier guarantees in particular that no adverse effects on the packaged product occur due to such packaging material. Furthermore, the Supplier guarantees the suitability of the packaging for its actual application.

5.11. The Supplier shall pack, label and dispatch the goods with care so that damage during transport is ruled out and safe and efficient transshipment, unloading, storing and dispatching of goods is ensured.

6. Product liability – indemnification – third-party liability insurance

6.1. If the Supplier is responsible for damage caused by the products, it shall be obliged to hold us free and harmless on our first request from any third-party claims, provided the reason is within the scope of the Supplier’s control and organization.

6.2. As part of its liability for damages in accordance with Clause 6.1 the Supplier is also obliged to reimburse us for the expenses arising from any recall conducted by us. We will inform the Supplier of the content and scope of the recall measures – as far as possible and reasonable – and give the Supplier the opportunity to make a statement. Any other claims we are entitled to shall remain unaffected.

7. Third-party rights

7.1. The Supplier guarantees that, in connection with its delivery, no third-party rights, including intellectual property rights, are violated within the country of destination made known to the Supplier.

7.2. If we are held liable by a third party for an infringement pursuant to Clause 7.1, the Supplier shall be obliged to hold us free and harmless on first written demand from such claims; we are not authorized to make any agreements, especially to conclude a settlement, with the third party without the prior written consent of the Supplier.

7.3. The indemnification obligation shall also apply to any costs of an appropriate legal defense incurred by us in connection with the claim of a third party.

8. Retention of title

8.1. We do not recognize any retention of title by the Supplier.

9. Governing law – place of jurisdiction – place of performance – severability clause

9.1. The laws of the Federal Republic of Germany shall apply, with the exception of its rules regarding the conflict of laws. However, the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall be applicable.

9.2. The place of jurisdiction is Gelnhausen; however, we are entitled to sue the Supplier at the court responsible for its registered office.

9.3. Unless indicated otherwise, the place of performance is Steinau an der Straße.

9.4. If any provision these General Purchase Conditions is wholly or partially invalid, unenforceable or void, the validity of the remaining provisions shall remain unaffected.

General Sales Conditions

1. Scope of Application

Our contracts are exclusively governed by the terms and conditions stated in our sales confirmations and by our following General Sales Conditions. We herewith explicitly object to deviating or conflicting General Purchase Conditions of our Buyer, unless otherwise explicitly agreed in writing.

2. Offer and Acceptance

Our offers are non-binding. Orders from our Buyer shall not be binding on us until the earlier of our sales confirmation or our delivery.

3. Prices and Payment

3.1. The purchase price is payable without any deduction by the due date.

3.2. In the event of delayed payment, the Buyer shall pay interest from the date of maturity to definite receipt of payment at a rate of 9 percentage points above the basic interest rate announced by Deutsche Bundesbank if the amount is invoiced in euros, or, if invoiced in any other currency, at a rate of 9 percentage points above the discount rate of the central bank of the country of the invoiced currency at the time the payment is due.

3.3. In the event of any reasonable doubts concerning the Buyer’s ability to pay and particularly if a default in payment has already occurred, we shall be entitled – without prejudice to any other rights – to revoke any credit terms granted and to demand payment in advance or sufficient collateral.

3.4. Set-off or retention with counterclaims other than those that are not disputed by us or are confirmed by final court decision shall be excluded.

3.5. Regardless of the place of delivery of goods or documents, the place of payment shall be our place of business.

4. Delivery

4.1. Delivery shall be effected as stated in the order confirmation. General Commercial Terms shall be interpreted in accordance with the Incoterms in force on the date the order confirmation is issued.

4.2. In the event of delayed delivery on our part, the Buyer shall be obliged to grant a reasonable period of grace.

5. Product Quality

5.1. Unless otherwise agreed explicitly in writing, the quality of the goods is exclusively determined by our product specifications.

5.2. The properties of samples are binding only insofar as they have been explicitly agreed in writing to define the quality of the goods.

5.3. Quality and shelf-life data as well as other data shall constitute a guarantee only if explicitly agreed and designated as such in writing.

6. Advice

6.1. Any advice rendered by us is given to the best of our knowledge. Any advice and information with respect to suitability and application of the goods shall not relieve the Buyer from analyzing and testing the goods.

6.2. Technical specifications are no warranty or guarantee for a particular suitability or application of the goods.

7. Retention of title

7.1. Simple retention of title: Title to the goods delivered shall not pass to the Buyer before the purchase price has been paid in full.

7.2. Right of access and disclosure: at our request, the Buyer shall provide all necessary information on the inventory of goods owned by us and/or shall identify our title to the goods on their packaging.

7.3. Late payment: in the event of late payment by the Buyer, we shall be entitled – without rescinding the sales agreement and without granting a period of grace – to demand the temporary surrender of the goods owned by us at the Buyer’s expense.

7.4. Partial waiver clause: should the value of the securities exceed our claims by more than 15%, we will waive securities of our choice to this extent.

7.5. In addition to Sec. 7.1 through 7.4, the following rules apply regarding the delivery of goods with destinations in Germany, Austria, and Switzerland:

7.5.1. Expanded retention of title: if the Buyer has paid the purchase price for the goods delivered but not yet completely fulfilled other debts arising from his business relationship with us, we shall retain, in addition, title to the goods delivered until all such outstanding debts have been completely paid.

7.5.2. Retention of title with processing clause: if the Buyer processes the goods delivered by us, we shall be considered manufacturer and shall directly acquire sole title to the newly produced goods. If the processing involves other materials, we shall directly acquire joint title to the newly produced goods in the proportion of the invoice value of the goods delivered by us to the invoice value of the other materials.

7.5.3. Right of access and disclosure: furthermore, at our request, the Buyer shall provide all the necessary information on the claims assigned to us and/or shall notify his customers of the assignment of the claims to us.

8. Defects

8.1. Upon receipt of each delivery, the Buyer shall test and analyse the delivered goods within 1 (one) week. If delivered goods are defective, the Buyer shall notify RUBIEPHARM ARZNEIMITTEL in writing within 30 days after reception thereof, specifying in reasonable detail the nature of the defect. “Hidden Defects” are excluded but shall be reported to RUBIEPHARM ARZNEIMITTEL without undue delay. RUBIEPHARM ARZNEIMITTEL shall investigate all complaints and provide an investigation report in thirty (30) calendar days.

8.2. If testing by RUBIEPHARM ARZNEIMITTEL within said period confirms that the delivered goods are defective, the Buyer shall, at the option of RUBIEPHARM ARZNEIMITTEL, dispose of or return to RUBIEPHARM ARZNEIMITTEL at RUBIEPHARM ARZNEIMITTEL’s expense such goods. RUBIEPHARM ARZNEIMITTEL shall, at the option of the Buyer, replace such quantity of goods free of charge or grant the Buyer full credit for the purchase price involved.

8.3. If RUBIEPHARM ARZNEIMITTEL and the Buyer fail to agree as to whether or not a delivered quantity of goods is defective, the parties shall in good faith agree on a recognised independent ISO 17025 accredited testing laboratory to have the batch in dispute tested and further analysed. The result of said laboratory’s testing shall be final and binding upon the parties. If the delivered goods were defective at the time of delivery according to said laboratory’s testing, RUBIEPHARM ARZNEIMITTEL shall bear the cost of such testing. Otherwise, the Buyer shall bear such costs.

8.4. If the Buyer does not comply with the above requirement of examination and notification, delivered goods shall be deemed accepted by the Buyer as non-defective, regardless of its actual condition.

8.5. In the case of timely and justified complaints, the warranty claims of the Buyer are initially limited at our discretion to the delivery of non-defective goods or to remedying the defect.

8.6. If our supplementary performance according to Sec. 8.5 fails, the Buyer may reduce the purchase price or withdraw from the purchase contract at his discretion. Claims for damages under Sec. 10 shall remain unaffected.

8.7. The filing of a complaint or any other claim does not release the Buyer from his obligation of payment.

8.8. We do not warrant or guarantee that the product is free from patents or other intellectual property rights of third parties.

8.9. The Buyer’s claims for defective goods become time-barred after expiration of the shelf-life of the goods.

9. Vigilance

9.1. In case of corrective actions (e.g. recall) in the markets the Buyer will provide any assistance required and will execute the corrective actions in conformity with the instructions given by us.

9.2. The Buyer is in responsibility to ensure batch traceability towards the distributors in the markets involved and in case of a market recall to return all recalled goods to his warehouses.

10. Liability

We shall be generally liable for damages in accordance with the law and according to the following rules: (i) In the event of a simple negligent violation of fundamental contractual obligations, however, our liability shall be limited to compensation for typical, foreseeable losses. (ii) In the event of a simple negligent violation of non-fundamental contractual obligations, we shall not be liable. (iii) The foregoing limitations on liability do not apply to damage to life, body or health.

11. Force Majeure

To the extent that any incident or circumstance beyond our control (including natural occurrences, war, strikes, lock-outs, shortages of raw materials and energy, obstruction of transportation, breakdown of manufacturing equipment, fire, explosion, acts of government) reduces the availability of goods from the plant from which we receive the goods, meaning that we cannot fulfil our obligations under this contract (taking account of other supply obligations on a pro-rata basis), we shall (i) be relieved from our obligations under this contract to the extent we are prevented from performing such obligations and (ii) have no obligation to procure goods from other sources. The first sentence also applies to the extent that such incident or circumstance renders contractual performance commercially useless for us over a long period or occurs with our suppliers. If the aforementioned occurrences last for a period of more than 3 months, we shall be entitled to rescind the contract without the Buyer having any right to compensation.

12. Miscellaneous

12.1. The place of jurisdiction is Gelnhausen. However, we shall be entitled to sue the Buyer at his place of business.

12.2. The laws of the Federal Republic of Germany apply, excluding the German rules regarding the conflict of laws and the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

12.3. If a provision of these foregoing General Sales Conditions is or becomes legally invalid, the validity of the remainder of the provisions shall not be affected thereby.

RubiePharm Arzneimittel GmbH

Managing Director: Frank Köhler
Brüder-Grimm-Straße 121
36396 Steinau an der Straße, Germany