Version of 22nd May 2019
General Terms and Conditions of Sale of DMV-Fonterra Excipients (USA) LLC ("DFE Pharma")
1.1 The present general terms and conditions of sale (the “Terms of Sale”) apply to all contracts for sale and purchase of excipients (the “Products“) presented by DMV-Fonterra Excipients (USA) LLC (“DFE Pharma”) on its online store https://estore.dfepharma.com (the “Online Store”) and ordered by DFE Pharma’s customers via the Online Store (the “Online Customers”).
1.2 Unless expressly agreed otherwise in writing,
(i) the commercial terms agreed via the Online Store (quantity and type of Products, Product description and specifications, Product prices, delivery and payment terms);
(ii) the present Terms of Sale; and
(iii) DFE Pharma’s code of conduct „Business Practices for Business Partners” available by clicking on the link.
comprise the entire contract of sale and purchase between DFE Pharma and its Online Customers. DFE Pharma does not accept deviating or conflicting terms and conditions of Online Customers.
- User registration
2.1 Use of the Online Store for purchasing Products requires Online Customers to register on the Online Store. Only natural persons of full legal capacity acting on behalf of enterprises with an EIN number shall be eligible for registration on the Online Store. DFE Pharma reserves the right to request a copy of the identity card of registrants, the EIN registration number, and other reasonable supporting documentation on the existence and activities of the Online Customer, and DFE Pharma may refuse registration in the event that DFE Pharma should find the information presented as unsatisfactory.
2.2 With the application for registration, users representing Online Customers are requested to choose a personal user name and a password. The chosen user name must not violate any third party rights or other trademark or rights to safeguard a name or public morals. Registered users must keep the password secret.
2.3 Registration on the Online Store is free of charge and does not oblige Online Customers to purchase any Products, nor does it oblige DFE Pharma to sell Products to Online Customers.
- Product presentation and ordering terms
3.1 The presentation of Products in the Online Store is only for information purposes and does not constitute a legally binding offer of DFE Pharma to sell Products to Online Customers.
3.2 Online Customers can select Products for purchase by placing them in an electronic shopping cart provided in the Online Store. After entry of all required ordering data, the Online Customer can click to access a page that summarizes the relevant order details. By subsequently clicking the „Order” button, the Online Customer places a binding electronic order for purchasing the specified type and quantity of Products to DFE Pharma.
3.3 Individual contracts for the sale and purchase of Products are concluded between DFE Pharma and the Online Customer when
(i) the Online Customer has placed an electronic order in accordance with clause 3.2 and
(ii) DFE Pharma has confirmed acceptance of such purchase order by submitting to the Online Customer an electronic order confirmation or a corresponding electronic invoice.
(iii) Proof of sales tax exemption of the Online Customer has been received by DFE Pharma. Online Customer will be contacted to send this proof after the order has been placed at the email address which is linked to the account of the Online Customer. Orders will be shipped after proof of the sales tax exemption license has been received.
- Prices, charges and payment terms
4.1 As consideration for Products purchased via the Online Store, the Online Customer shall pay to DFE Pharma the Product prices and shipping charges set forth in the Online Customer’s purchase order accepted by DFE Pharma in accordance with article 3 above.
4.2 Unless expressly provided otherwise by DFE Pharma, all Product prices and shipping charges stated on the Online Store are exclusive of VAT and any applicable VAT, sales tax or other relevant taxes, and any such VAT, sales tax or other relevant taxes will be charged in addition to the prices and charges stated on the Online Store.
4.3 The Online Customer shall pay all agreed Product prices and shipping charges immediately by placing his order. With the receipt of DFE Pharma’s order confirmation the Online Customer will receive an invoice pursuant to clause 3.3. Payment must be effected via credit card, bank transfer or other payment provider service as stated on the Online Store.
4.4 If the Online Customer fails to remit any due payment, DFE Pharma may suspend delivery of the Products until payment of all outstanding debt has been received. In addition to any other remedy available, DFE Pharma is entitled to liquidated damages for delayed payment of one percent (1%) of the amount outstanding for each commenced month of delayed payment.
- Delivery terms
5.1 Except if expressly agreed otherwise,
(i) all delivery periods and delivery dates for Products ordered as stated on the Online Store are approximate only and not binding; and
(ii) all Products ordered will be delivered CPT INCOTERMS 2010 from the place of delivery agreed in the respective order to the place of destination specified in such order.
5.2 DFE Pharma reserves the right to deliver the Products in batches or in reasonable partial quantities. The Online Customer may not reject any delivery on the grounds of variation of quantity where such variation is not more or less than 10% of the quantity ordered.
5.3 The Online Customer shall provide sufficient loading and unloading facilities for fast unloading of Products delivered, and shall accept the delivery unless the Products reveal a defect for which DFE Pharma is responsible in accordance with Article 7 below.
- Transfer of ownership
6.1 Title to the property of the Products delivered to the Online Customer will remain with DFE Pharma until the Online Customer shall have paid the agreed purchase price and charges in full.
6.2 For as long as title to the Products is reserved pursuant to clause 6.1, the Online Customer may not:
(i) dispose of the Products other than in the ordinary course of business, or
(ii) pledge, mortgage or otherwise encumber the Products.
- Defects liability and warranty terms
7.1 DFE Pharma warrants and represents to the Online Customer that Products sold and delivered to the Online Customer will on delivery to the Online Customer:
(i) Conform to relevant Product descriptions and/or specifications published by DFE Pharma on the Online Store;
(ii) be manufactured in accordance with good manufacturing practice and under a quality assurance system; and
(iii) subject to the retention of title to the property in Products provided in article 6 above, be free of any liens and encumbrances.
7.2 Upon delivery of Products, the Online Customer shall inspect all such deliveries visually as to whether or not these have any apparent Product Defects due to transportation, and to report to DFE Pharma any such Product defects detected upon delivery no later than three (3) business days from delivery. In the event that the Online Customer (either by itself or through third parties) becomes aware of any other Product defect after delivery of Products, the Online Customer shall notify DFE Pharma of such other Product defect within three (3) business days from receiving knowledge of such defect.
7.3 If Products delivered are found to have a defect for which DFE Pharma is responsible in accordance with clauses 7.1 up to 7.2, DFE Pharma, at its sole discretion, shall remedy such defect by either:
(i) replacing the defective Products with new Products; or
(ii) reducing the purchase price for the defective Products; or
(iii) issuing a credit to the Online Customer equal to the purchase value of the defective Product.
7.4 THE WARRANTIES PROVIDED IN CLAUSE 7.1 ABOVE ARE THE SOLE WARRANTIES GIVEN BY DFE PHARMA. DFE PHARMA MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCTS, THE APPLICATION OR USE THEREOF, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE, EACH OF WHICH IS SPECIFICALLY DISCLAIMED.
- Limited liability
8.1 IN NO EVENT SHALL DFE PHARMA BE LIABLE TO THE ONLINE CUSTOMER FOR LOST INCOME OR PROFITS, LOSS OF BUSINESS OR CLIENTS, LOSS OF GOODWILL, LOSS OF USE, INCREASED COST OF WORKING, PENALTIES, FINES, AND PUNITIVE DAMAGES, DAMAGE RESULTING FROM LATE DELIVERY, DAMAGE TO REPUTATION, OR ANY SPECIAL, INDIRECT, CONSEQUENTIAL DAMAGES OR LOSSES, WHETHER IN CONTRACT OR TORT, EVEN IF IT HAS BEEN ADVISED ABOUT THE POSSIBILITY OF THOSE DAMAGES.
8.2 IN ALL CASES WHERE DFE PHARMA IS REQUIRED TO PAY COMPENSATION FOR DAMAGES, SUCH COMPENSATION SHALL PER CALENDAR YEAR NOT EXCEED THE AMOUNT PAID BY THE ONLINE CUSTOMER TO DFE PHARMA FOR PRODUCTS DELIVERED BY DFE PHARMA TO THE ONLINE CUSTOMER IN THE CALENDAR YEAR IN WHICH THE CLAIM FOR COMPENSATION ARISES.
- Suspension and termination rights
9.1 DFE Pharma shall be entitled to suspend performance of sale and purchase contracts, or to terminate the relationship with an Online Customer by written or electronic notice to the Online Customer in any of the following events:
(i) If the Online Customer is found to have presented to DFE Pharma inaccurate information on the Online Customer upon registration on the Online Store;
(ii) if the Online Customer is in breach of any material obligations under an individual sale and purchase contract between DFE Pharma and the Online Customer, and such breach is not cured within ten (10) business days from receipt of a corresponding warning notice issued by DFE Pharma to the Online Customer;
(iii) if the Online Customer is in breach of any terms set forth in DFE Pharma’s code of conduct „Business Practices for Business Partners” available for download on the Online Store;
(iv) if the Online Customer is declared bankrupt or its bankruptcy or (provisional) suspension of payment is obliged for or granted, if its business is liquidated or discontinued or it otherwise proven to be insolvent.
9.2 If and when terminated in accordance with the foregoing provisions, Online Customer shall not have any claims against DFE Pharma as a consequence of such termination.
- Force Majeure
10.1 DFE Pharma will not be liable for any delay or failure in performing its obligations towards Online Customer because of circumstances beyond its reasonable control (“Force Majeure Events”), such as, without limitation, acts of god, war, riot, flood, industrial or labor disputes, acts of state or governmental action, animal diseases, failure or delay on the part of subcontractors, supplier or carriers, devaluation, increase of levies or taxes of whatever nature, significant change of prices of raw materials or energy, or lapse, withdrawal or non-extension of the required permits, certificates, licenses and such like. In the case of a Force Majeure Event, DFE Pharma shall promptly notify the Online Customer, and the obligations of DFE Pharma shall be, to the extent that it is so prevented or impeded, suspended. The reciprocal obligations of Online Customer shall also be suspended without liability for breach or non-performance.
10.2 If a Force Majeure Event affecting DFE Pharma can reasonably be expected to continue in excess of two months, or has already lasted for a period of two months, either party may cancel the relevant order or terminate the relationship on written notice to the other party with immediate effect, without thereby creating any rights to compensation.
- Governing law and disputes
11.1 These Terms of Sale and all contracts between DFE Pharma and Online Customers for sale and purchase of Products ordered via the Online Store will be governed by Delaware law without regard to its rules regarding conflicts of laws.
11.2 Any disputes and claims that the parties cannot amicably resolve shall be settled in the competent courts in Bergen County, New Jersey, USA.
12.1 The Online Customer shall not assign any contracts between DFE Pharma and the Online Customer for sale and purchase of Products ordered via the Online Store, or any rights or obligations under such contracts to any third party without the prior written consent of DFE Pharma.
12.2 In the event that one or more of the provisions or portions of these Sales Terms is determined to be illegal or unenforceable, the remainder of the Sales Terms shall not be affected thereby and each remaining provision or portion thereof shall continue to be valid and effective and shall be enforceable to the fullest extent permitted by law. The unenforceability of any provision of these Sales Terms in any competent jurisdiction shall not affect the enforceability of any other provision(s) or of such provision in any other competent jurisdiction.