1. Scope of Application

All sales and delivery of goods and services by ABCR Laboratorios, SL (ABCR Labs) are subject to these Conditions of Sale and Delivery and additionally the applicable statutory law of the Spanish Companies Act. Terms that vary therefrom, including any general conditions of purchaser, shall only be considered binding if they have been confirmed by us in written form. Our delivery of goods, performance of services or acceptance of payments does not constitute acceptance on our part of terms that vary from these Conditions of Sale and the applicable statutory law.

2. Offers, Contracts

Our offers are made subject to confirmation. A contract is only formed when we give order confirmation in writing or when orders are fulfilled by us.

3. Form

For the purposes of these Conditions of Sale, (a) “in writing” means in text form (including email, facsimile, computer-generated letters and telegrams), and (b) “written form” means a hand-signed document. Any amendment or supplement to these Conditions of Sale including this Section 3.1, and any termination or mutually agreed cancellation of a contract shall be made in written form.

Other statements and notices shall be made in writing.

4. Prices

Unless otherwise agreed in writing, our prices are quoted ex works Forcarei, Spain (INCOTERMS 2020) and do not include the packaging costs. Value added tax shall be payable additionally at the statutory rate in effect on the invoice date.

ABCR Labs reserves the right to implement price adjustments if, following the conclusion of the contract until delivery, costs change on account of the following factors which ABCR Labs is not responsible for and which were not foreseeable with reasonable certainty: wage settlements, changes in raw material prices, other suppliers price changes or currency fluctuations. ABCR Labs shall disclose the reason for such price adjustment upon the customer’s request.

5. Payment, Set-off

Unless agreed otherwise in writing, invoices shall be paid within 15 days after the delivery or the performance of services and are payable via bank transfer into one of the accounts indicated by ABCR Labs.

Unless agreed otherwise, payments shall be made in Euros.

In case of delayed payment, ABCR Labs shall be entitled to claim default interest in the amount of 8% above the base interest rate, however, a minimum of 12% of the outstanding amount per year.

If, after having entered into a contract with the customer, it becomes clear that the customer may be unable to fulfil its contractual obligations due to its financial situation (particularly if payments are discontinued, insolvency proceeding have been instituted, bills are protested and direct debits are returned, involving third parties as well), ABCR Labs shall be entitled to retain deliveries until prepayment of the purchase price is effected or an adequate security is lodged. The same shall apply if legitimate doubts exist concerning the customer’s creditworthiness or its ability to pay as a result of payments being delayed.

If the customer does not provide the advance payment or the security in accordance with section 5.4 within two weeks, ABCR Labs shall be entitled to rescind the respective contracts or if the contract comprises the performance of a continuing obligation, such as Supply agreement, terminate such contract without notice.

Set-off by purchaser is permitted only for claims that are undisputed or have been upheld by final decision of a court of competent jurisdiction.

6. Place of Performance, Shipment

The place of delivery or performance shall be our place of production or storage.

If shipment has been agreed to be included, we shall ship the goods at purchaser’s risk. Furthermore, we shall determine the manner of shipment, shipment route and carrier.

7. Partial Delivery and Performance

Partial delivery and performance shall, to a reasonable extent, be permitted.

8. Delivery Schedules, Delay

If we fail to comply with the agreed schedules of delivery or performance or other contractual obligations on time, purchaser shall grant us in writing an additional delivery or performance period of reasonable length, such period to be at least three (3) weeks.

If delivery or performance does not take place by the end of the additional delivery or performance period and if purchaser for this reason intends to exercise its option to rescind the contract or claim damages instead of delivery, purchaser shall first grant us in writing a further reasonable period for delivery or performance. Purchaser shall, upon our request, notify us in writing within a reasonable time period, whether purchaser intends, as a result of the delay, to rescind and/or claim damages instead of delivery, or insists on delivery/performance.

If the customer is in default of acceptance or if the usual time taken for qualifying goods is exceeded at the time of acceptance, it shall be charged the additional cost arising as a result, such as container rental cost and other storage costs. ABCR Labs shall be entitled to charge the customer 0.1% of the amount invoiced for the storage of goods per calendar day of storage as lump-sum compensation for storage costs. However, the customer shall be charged a maximum of 3% per calendar month, unless it provides evidence the damages incurred are lower. ABCR Labs reserves the right to submit evidence of greater damages. However, ABCR Labs shall be entitled to find alternatives ways to dispose of the goods, if attempts to determine a reasonable period of time are unsuccessful.

9. Transport Insurance

We are authorized to obtain appropriate transport insurance on behalf and at the expense of purchaser in an amount at least equal to the invoiced value of the goods.

10. Retention of Title

The goods sold shall remain our property until all our claims against purchaser arising from our business relationship with purchaser have been satisfied.

If the goods have been processed by purchaser, our retention of title shall extend to the new products. If the goods have been processed, combined or mixed by purchaser with goods of others, we acquire joint title pro rata to that part of the new products representing the invoiced value of our goods in relation to the total value of the other goods which have been processed, combined or mixed.

In the event our goods are combined or mixed with goods of purchaser or of any third party, purchaser hereby assigns to us its rights with regard to the new products. If purchaser combines or mixes our goods with goods of a third party for payment, purchaser hereby assigns to us its right to payment from such third party.

Buyer may, in the ordinary course of its business, resell any goods which are subject to our retention of title or sell the new products. If, upon such sale/resale, buyer does not receive the full purchase price in advance or upon delivery of such goods or new products, purchaser shall agree with its customer a retention of title arrangement on the same terms as set out herein. Buyer hereby assigns to us all its claims arising from such sale/resale and its rights arising from the said retention of title arrangement. Upon our request, buyer shall inform its customer of such assignment of rights and provide us with the information and documents necessary to enforce our rights. Notwithstanding the foregoing, buyer shall only be entitled to collect payments from claims arising from such sale/resale if buyer has satisfied its liabilities to us.

In the event that the security interests granted to us exceed the value of our claims, we shall, upon request of purchaser, release such security interests as we deem appropriate. The exercise of our right of retention of title may only be regarded additionally as a rescission with our prior consent made in writing.

11. Force Majeure

Conditions of force majeure shall release us from our delivery and performance obligations. The same release shall apply in cases of shortage of energy or raw material supplies, industrial disputes, governmental decrees, breakdown of transport or of our operations. It shall also apply where our sub-suppliers or affiliates (as defined in the Spanish Companies Act) are affected by any of the above.

12. Product Information

Unless otherwise agreed in writing, the contractual characteristics of our goods shall be exclusively based on our product specifications in their current version. Any information about properties, durability and other data shall be deemed to be guarantees only if they are agreed and indicated by us as such in written form. Written and verbal information about goods, equipment, plant, applications, processes and process instructions is based on research and experience in the field of applied engineering. We provide such information, which is accurate to the best of our knowledge, subject to our right to modify and further develop it and such information shall not be binding. The aforesaid shall not release purchaser of its obligation to verify the suitability of our goods for the use intended by purchaser. This shall also apply to the protection of third parties’ intellectual property rights.

13. Complaints

All claims, particularly those relating to defects and delivery shortfalls, must be submitted to us in writing without delay, but not later than 10 days from the delivery of goods or, in the case of latent defects, within 5 days from the date such defect(s) is discovered or should have been discovered through reasonable investigation. If purchaser does not notify us of claims within such time period or in the agreed form, our goods or services referred to in such noncompliant notice shall be deemed to be delivered or performed in accordance with the contract. If purchaser, knowing of defects, accepts our goods or services, purchaser shall only be entitled to raise a claim for such defects if purchaser has reserved such rights in writing at the time of delivery.

14. Rights of Purchaser in Case of Defects

Purchaser shall have no right to remedies for a defect in our goods or services if the contractually agreed characteristics of the goods and services are only unsubstantially impaired. In the event of justified and rightfully raised defect claims of the delivered goods or services, we reserve the right, solely at our discretion, to either replace or repair the goods or services. We shall always be granted reasonable time to provide such replacement or repair. If our repair or replacement fails to remedy the defects, purchaser shall be entitled to either adjust the purchase price respectively or rescind.

Furthermore, purchaser may claim pursuant to statutory law damages and refund of its actual out-of-pocket expenses necessary for the purpose of repair or replacement. For the avoidance of doubt, Section 15 shall apply to claims for damages and refund under this Section 14.2.

Claims by purchaser against us pursuant to statutory law can only be made to the extent purchaser has not agreed with its customers on provisions exceeding the statutory rights in cases of defects.

Notwithstanding Section 14.3, recovery claims by purchaser against us according to the Civil Code of Spain are hereby excluded.

15. Liability

We, our legal representatives, employees, and persons employed to perform our obligations shall only be liable for damages and claims for expenses of purchaser, irrespective of the legal basis therefor, whether based on breach of obligations deriving from the contract and/or tort, (i) in the event of intentional misconduct or gross negligence on our part, the part of our legal representatives, employees or persons employed to perform our obligations, or (ii) if the breach of our contractual obligations violates the essence of the contract and purchaser relies, and is entitled to rely, on the fulfillment of such obligations (essential obligations). In the event of slight negligence in breach of essential obligations, our liability for damages shall be limited to the foreseeable damage typical for a contract of this nature up to €100,000 or twice the invoiced value of the goods or services in question if this value exceeds €100,000.

The aforementioned exclusion or limitation of liability shall not apply in cases of damage to life, body or health, or mandatory liability under the Spanish Product Liability Act or in other cases of mandatory liability.

16. Time Limits

Purchaser’s right to claim for warranty, damages or expenses shall expire 1 year from the commencement of the time limit stipulated by law, except for defect claims in relation to goods that were used appropriately in construction and have caused the building to be defective where the time limit shall be 4 years. The above time limits shall not apply if we have acted intentionally or in cases of damage to life, body or health, mandatory liability under Spain’s Product Liability Laws or in other cases of mandatory liability.

17. Compliance with Statutory Regulations, Export and Customs Regulations, Indemnification, Rescission

Unless otherwise agreed in written form, purchaser shall be responsible for compliance with statutory and regulatory requirements for the import, transport, storage, use, distribution, and export of the goods. In particular, but not limited to, the purchaser shall not use, sell or otherwise dispose of any of the goods for the development or production of biological, chemical or nuclear weapons; for the unlawful manufacture of drugs; in violation of embargoes; in violation of any legal registration or notification requirement; or without having obtained all relevant approvals required under applicable laws and regulations. The purchaser shall indemnify us against, and hold us harmless from, any claims, damages, costs, expenses, liabilities, loss, claims or proceedings whatsoever arising out of, or in connection with, any breach by purchaser of its obligations set forth above.

Where a statutory or regulatory approval requirement applies to the export of our goods/services at the time of delivery/performance and such export approval is not granted upon request, we shall be entitled to rescind. Delays in obtaining such approvals by responsible authorities will not result in the right to claim for damages.

We are also entitled to rescind in the event a trade prohibition that applies at the time of delivery or in the event a product registration obligation applies and registration at the time of delivery/performance has not been applied for or granted.

If the purchased goods are subject to customs preferences due to their preferential origin, we reserve the right to automatically generate and issue all declarations regarding the preferential origin of the goods (supplier’s declaration, invoice declaration) without signature. We confirm that the declaration of preferential origin will be issued to the purchaser in accordance with our obligations set forth in Regulation (EU) No. 2015/2447.

18. Place of Jurisdiction

If purchaser is a merchant, the exclusive place of jurisdiction shall be our commercial domicile. If we institute legal proceedings against purchaser, we shall also have the option to institute legal proceedings at purchaser's place of jurisdiction.

19. Applicable Law

The contract and the legal relationship with purchaser shall be governed by the substantive laws of Spain and the UN Convention on Contracts for the International Sale of Goods shall not apply.

20. Trade Terms

If any trade terms have been agreed pursuant to the International Commercial Terms (INCOTERMS), they shall be interpreted and apply in accordance with INCOTERMS 2020.

21. Severability

Should any of these Conditions of Sale be deemed wholly or partly invalid, this shall have no effect on the validity of the remaining terms.

Forcarei, January 1st, 2020