General Terms and Conditions
1. Your Acceptance of these GTC. Priority of document
These general terms and conditions (“GTC”) govern the sale of goods from SERO AS (Org. No. 912 228 738) (“SERO”) to the buyer (“Buyer”) and are by reference hereto accepted by the Buyer. Only SERO’s authorized officers may agree to a variation or addition of these GTC in writing. Buyer’s general terms as incorporated in or referred to in a purchase order or otherwise shall not apply. These GTC apply unless otherwise agreed in other written agreement between the parties. If the parties have entered into a distribution or supply agreement, the GTC shall be regarded as an integral part of such agreements, but shall in case of conflict have priority after such documents but before background law.
2. Restricted Purpose of Use
If not expressly certified by the Manufacturer for other intended use, all Branded Products sold are for in vitro diagnostic or research use only and SERO is not liable for use for other purposes including human therapeutic applications. The Buyer acknowledges that the goods may be subject to, and agrees to abide by, import control laws and regulations of the country in which the goods are received.
3. Order and Order Confirmation
All purchase orders placed by the Buyer are binding for Buyer. At receipt of an order, SERO is only legally bound if SERO approves it by issuing a written order confirmation received by Buyer. The confirmed order represents a “Firm Order”.
If SERO’s order confirmation deviates from the order, the Buyer shall not later than two (2) working days after Buyer received the order confirmation clearly express that Buyer does not accept the deviation or be bound by it. Buyer may not cancel an order after having received a due order confirmation from SERO.
4. Prices and Delivery Terms
Prices are exclusive of VAT, fees and shipping. If in the period between the offer/ordering and the payment date changes to government fees and taxes are adopted, SERO is entitled to charge Buyer for the added costs.
Delivery terms are Ex Works SERO’s facilities in Billingstad, Norway (Incoterms 2010). The risk for the goods passes when SERO has delivered the goods to the carrier in Billingstad. SERO maintains ownership to the goods until receipt of full payment thereof.
If SERO organizes the transportation, then SERO shall be entitled to determine the manner of transportation unless otherwise agreed.
Installation, implementation and training must be agreed separately and is not included unless it is stated in the offer, order confirmation or contract.
5. Delivery Date and Delay
The planned delivery date is stated in the Order Confirmation. In the case of an unforeseen delay, SERO shall inform Buyer as soon as possible and both parties will work together to resolve the situation and Buyer’s risk for loss. If SERO fails to deliver any part of the goods by the delivery date, then Buyer is entitled to liquidated damages after a grace period of four weeks after the delivery date. The liquidated damages shall be payable at a rate of 0.1 % of the net purchase price for the delayed goods for each calendar day of delay thereafter with a maximum of 5 %. Buyer’s rights under this section 5 and section 10 (termination) are Buyer’s only remedy for delay and Buyer may not claim any additional compensation or damages from SERO. If Buyer claims liquidated damages, such claim must be received by SERO within 14 days from the date when the full extent of the delay was apparent and have passed.
6. Packing and transport pricing
SERO will package the goods for shipment (ExWorks) according to SERO standards if no
specific instructions are received from the Buyer or the Carrier selected by the Buyer. All additional costs including if required - packaging with dry ice will be billed to the Buyer. Shipments below a certain volume are charged with a “small volume fee” stated on the SERO order confirmation. Shipments with dry ice are subject to a packing and handling charge stated on the SERO order confirmation.
7. Payment Terms and Invoicing. Price changes
SERO invoices sales and other due amounts in NOK (Norwegian kroner). The price stated on an order confirmation is, unless otherwise set out, exclusive of VAT and export taxes/duties. Buyer shall accept to receive invoices per e-mail. The Buyer shall respect SERO’s instructions regarding the payment of SERO invoices. SERO shall receive full payment net of any bank fees and charges except from the SERO receiving bank.
Buyer shall pay within 14 days of date of Order Confirmation.
In case of late payment or any breach of these GTC, SERO reserves the right to postpone or cancel outstanding Firm Orders and refuse further orders.
Any late payments are subject to 1% monthly penalty interest and any reasonable costs of collection and storage, including all associated reasonable attorneys’ fees and a charge for late payment. Interest is compounded annually. Further, SERO reserves the right to request a pre-payment for current and any future Firm Orders.
SERO may at any time with a reasonable notification to Buyer change its prices for future Firm Orders as necessary based on economic variables such as (but not limited to) prices on raw materials, prices from sub-suppliers, change in governmental fees/charges/duties/taxes and currency fluctuations. The applicable pricing for a Firm Order is the current price at the date of order confirmation by SERO. SERO will confirm the price on the order confirmation. If this price is higher than the price per date of Buyer’s order, then Buyer is not bound by the new price unless SERO clearly informs of the new price and Buyer does not protest within 2 working days from receipt thereof.
SERO retains a lien on the sold items as security for its claim for the purchase price plus interest and other related costs.
8. Returns and cancellations
SERO does not accept returns, credits, cancellations, volume reductions or replacement of goods without prior agreement or approval and at the Buyer’s risk and expense. Any return of Defect goods is subject to section 9.
Return of goods with limited shelf life are not accepted. In cases where SERO agrees to the return of goods, any losses to the gross profit and other consequential costs incurred will be deducted from the credit payment owed to the customer.
9. Inspection and Responsibility for Defects / Warranty
The Buyer shall immediately upon receipt inspect the goods for any Defects (as defined below). After 14 days following the receipt of the goods only claims of Defects that could not have been detected by an incoming inspection performed with reasonable care, will be accepted. Generally, the Buyer will lose his right to claim any Defects unless he issues a written notice describing the alleged Defects to SERO within reasonable time, and no later than 5 workdays, after the Defect was discovered, or should have been discovered by Buyer or Buyer’s representative, agent or contractor. Failure of due notification means the Buyer loses its right to claim rectification or remedies for a Defect.
SERO’s liability for defect goods is limited to the following: insufficient delivery volumes, physical damage to the goods or if the goods do not comply with the product description (each, a “Defect”). SERO undertakes no other liability. SERO’s liability does under any circumstance end 12 months after the delivery date.
If Buyer files a due notification to SERO that the goods have a Defect, then Buyer shall supply evidence thereof and if relevant also analysis results and raw data or other documentation to SERO for evaluation. SERO shall be given adequate time to evaluate the findings and perform own analyses if necessary. Costs incurred in relation to the necessary examination shall be borne by the Buyer if the complaint appears to be unfounded.
If goods are Defect and Buyer does not terminate the Firm Order under section 10, then SERO shall as only liability and compensation for Defect goods and any consequence thereof to Buyer, repair or replace the Defect goods. SERO may choose instead to refund the Buyer a reasonable part or all of the purchase price for the Defect goods. SERO’s replacement and/or refund is provided Buyer returns or destroys the Defect goods as decided by SERO. Buyer’s submission of a complaint does not suspend Buyer’s payment obligation for the goods unless the relevant Firm Order is duly terminated. Buyer may not offset any claims against other due payments to SERO.
In cases where late delivery is caused by circumstances on the purchaser side, the warranty runs from the date the delivery should have taken place.
If the Buyer due to an outstanding complaint has not paid an overdue purchase price, SERO may defer rectification of the deficiency until the overdue purchase price is paid.
The warranty does not cover routine maintenance, parts and labor as a result of normal wear and tear, including but not limited to gaskets, hoses, bulbs, fuses and the like or software upgrades.
This warranty is void if there have been any connections or interference with the goods without SERO's consent. The same applies if damage occurs as a result of misuse or mistreatment, improper maintenance, failure of power and water supply or other external influences.
10. Right to Terminate a Firm Order
Buyer may terminate a Firm Order for goods by a written notice with immediate effect if SERO materially has breached the relevant delivery contract and, if the breach is possible to rectify, fails to perform rectification within reasonable time. If the rectification shall take place by reproduction of goods, the “reasonable time” shall take into account the normal production time for the applicable type of goods.
Minor variations in the goods supplied shall never constitute grounds for the Buyer to cancel the order or the goods supplied in full, or to claim damages from SERO.
If a delay or Defect only affects a part of the Firm Order, then Buyer’s right of termination is limited to the affected goods. If Buyer terminates a Firm Order, Buyer may only claim return of the purchase price based on background law and may not claim any damages or other compensation.
SERO may terminate a Firm Order for goods by a written notice with immediate effect, and without limiting its other remedies under law or these GTC claim Buyer for its losses and lost profit, if:
- Buyer has not prepaid a Firm Order when due; or
- Buyer has not paid for other Firm Orders within 14 days after due date; or
- Buyer otherwise materially has breached, or presumably will breach, the relevant delivery contract or other agreement between the parties.
- A competitor of SERO directly or indirectly obtains an ownership or similar interest in Buyer.
Each Party may also terminate a Firm Order and any other agreement between them if the other party is insolvent, enters into bankruptcy proceedings or voluntary or compulsory debt settlement, is liquidated or for other reasons discontinues its relevant business.
11. Force Majeure
Neither party shall be liable to the other for any failure to perform or delay in performance of its obligations caused by outbreak of hostilities, riot, civil disturbance, industrial actions, acts of terrorism, fire, explosion or natural catastrophe, or any other cause or circumstance beyond such party’s reasonable control. Performance of obligations, unless already due and owning, shall be suspended during such period of force majeure.
If a force majeure situation on the part of SERO or the Buyer has lasted for 60 days, then SERO may without liability for either party and with a 7 days prior notice terminate the relevant Firm Order.
12. Limitation of Liability
SERO’s overall aggregate liability, including but not limited to liability for damages, liquidated damages, redelivery, rectification, defects or repairs, termination or recession, warranties or indemnification or other remedies of Buyer related to goods under a Firm Order, shall for all claims from Buyer, third party or authorities and without regard to negligence or gross negligence by SERO, not exceed the price for the goods causing the liability of SERO. The said limitation shall to the extent permissible by law or insurance agreement not reduce any insurance coverage in favour of the Buyer. The Buyer may not file any claim or ask for any remedy relating to the order or any underlying document towards SERO exceeding the said limitations based on background law or other arrangement or agreement.
The limitations under this section 12, first paragraph only, do not apply for the indemnifications under next section.
Furthermore, SERO shall not be liable under or in connection with the relevant Firm Order for any loss of profit, goodwill, business opportunity or any kid, loss of use, loss of time, loss of material, inconvenience, or any indirect or consequential loss or damage of any kind, whether or not the other party has been advised of the possibility of such damages, and whether under law, equity or other agreement, unless such loss is caused willfully by such party or by any grossly negligent act or omission of such party.
Buyer shall indemnify SERO and hold SERO harmless from and against, and shall defend against, any and all claims and damages of every kind for injury to or death of any person or persons and for damage to or loss of property, arising out of or attributed, directly or indirectly, to the conduct, operations or performance of Buyer, except those caused solely by SERO. Buyer shall also indemnify SERO for any product liability or similar claimed by a third party or government authority outside the EU or EEC.
SERO shall indemnify Buyer and hold Buyer harmless from and against, and shall defend against, any and all claims and damages of every kind for injury to or death of any person or persons and for damage to or loss of property, caused by any defects, failures, or malfunctions of any goods, except those caused solely by Buyer, or otherwise arising out of or attributed, directly or indirectly, to the conduct, operations, or performance of Buyer. This liability of SERO is expressly limited not to cover occurrences involving or caused by tampering with any goods while in Buyer’s possession or control.
SERO warrants that to the best of its knowledge SERO’s manufacturing process and the goods do not violate any patents, patent rights, patent applications, copyright information, trade secrets, or proprietary rights or processes of any third party and there are no pending or threatened suits, claims, or actions of any type whatsoever with respect to the goods.
Patents, patent rights, patent applications, copyright information, trade secrets and other intellectual property rights and know how in all literature, manuals and other information in any form supplied by SERO as part of the goods or in connection therewith shall remain the sole property of SERO at all times. Nothing in these GTC or other agreement or document shall be construed as a licence, transfer or grant from either party to the other. The Buyer may not disassemble or decompile the goods, or on the basis of the received goods or information make any effort to enable itself or any other party or its affiliates to design and/or manufacture identical or similar goods. The Buyer will not share any information of the goods with parties not about to use, purchase or maintain the goods.
Use of SEROs logo requires written approval in advance.
Buyer shall have the right to use the software for use on the equipment for which it is delivered. The Buyer is not entitled to copy this to others in any form. For safekeeping Buyer may make a copy of the supplied software and store in a safe place. For any standard programs supplied the terms supplied by the individual software vendors apply.
16. For Scandinavian public laboratories
For leveringsbetingelser (Incoterms), betalingsfrist og valuta ved fakturering gjelder lokale betingelser, se «Spesielle betingelser, gjeldende offentlige laboratorier i Norge, Sverige og Danmark» nedenfor.
17. Obligations for Buyers reselling Branded Products supplied by SERO.
“SERO Branded Products” means goods which are manufactured and branded by SERO and this section 16 only applies to such goods.
Buyers can only resell Branded Products supplied by SERO with the written consent from SERO which normally will be in the form of an agreed Distributor agreement.
By ordering Branded Products for resale from SERO, the Buyer agrees to comply with all relevant laws and regulations covering the sale of such Branded Products in the territories were SERO has consented to the resale of these Branded Products by the Buyer.
The Buyer shall inform SERO immediately on learning of any malfunction, failure or deterioration in the characteristics and/or performance of the goods, as well as any inadequacy in the labelling or the instructions for use which, directly or indirectly has led to, might lead to, or might have led to, the death of a patient or user or other persons or to a serious deterioration in his or their state of health or a serious public threat.
The Buyer shall also:
- inform SERO of any user complaint judged by the Buyer to imply a variation between the characteristics and performance of the Branded Product as stated by SERO and the ones observed by the Buyer, and of any inadequacy in the labelling or instruction for use of the Branded Products.
- establish and maintain a system of record keeping (incl. register of batch numbers and customer names and addresses for all customers having received the Branded Products) so that it is possible to guarantee a full traceability regarding which customers have received which batch
- in case of market withdrawal decided by the Manufacturer, inform as soon as possible each customer of the relevant Branded Product.
- If SERO decides to stop marketing a given Branded Product, the Buyer shall immediately stop all deliveries of this Branded Product. In the case of a market withdrawal decided by the Manufacturer, the Buyer shall inform each customer of the relevant batch of the withdrawal as soon as possible and assist in the practical handling of the withdrawal.
- keep SERO fully informed on any regulations, standards and laws applicable to the import, marketing and sale (including labelling, packaging, indications and warnings) of the Brande Products within the Territory and any proposed changes thereof.
The Buyer shall not alter, obscure, remove, conceal or otherwise interfere with any markings, trademarks or nameplates or other indication of the source of origin of the SERO Branded Products which may be placed by SERO on the SERO Branded Products, nor shall the Buyer, without the previous written consent of SERO, place on or use in connection with the SERO Branded Products any trademark or in any way alter or tamper with the SERO Branded Products or their packaging, appearance or set-up.
18. Additional Requirements for Purchase of Material
“Material” means unlabeled goods sold by SERO to be used for purposes defined by the Buyer including the manufacture of products for laboratory use or resale by the Buyer, and this section 18 only applies to such Material.
If Buyer purchases Material from SERO, then Buyer also accepts the responsibility as legal manufacturer of the products being manufactured partly or in whole based on the Material.
It is the sole responsibility of the Buyer to establish the adequacy of all Material for any particular intended application, use or purpose. If resold, the Buyer shall market and brand the Material under Buyer’s trade names, logos and labels and with Buyer as the legal manufacturer and SERO has no liability whatsoever for such resale.
Buyer accepts that Material, specifically produced for the Buyer, may be shipped and invoiced in quantities 10% above or below the ordered quantity/the quantity stated on the order confirmation. Buyer accepts that the quantity of Material is adjusted up to full trays.
Buyer agrees to keep in confidence and use only for the reasonable use of the goods all confidential information which SERO discloses to the Buyer with respect to the goods (“Confidential Information”). The Buyer’s obligations herein shall not apply to information which:
- i) is already known to the Buyer,
- ii) is or becomes publicly known without any breach by the Buyer,
iii) is rightfully received by the Buyer from a third party
Buyer shall take all necessary measures to ensure that its employees likewise observe and maintain secrecy according to this section. The obligations of Buyer under this section 19 shall remain in force indefinitely. Upon notification from SERO, Buyer shall return to SERO or destroy all data, information and materials of any kind which constitute Confidential Information, along with all copies, adaptations and independent compilations thereof made by the other or otherwise in its possession.
20. Notices. Days
All notices and other communication shall be in writing in English or in a Scandinavian language and be deemed to have been properly given when delivered in person, by an internationally-recognized delivery service, or made by e-mail (with confirmed receipt or to an e-mail address frequently used between the parties) or by prepaid registered air mail sent to the following addresses. Any termination requires registered mail or confirmed receipt per e-mail.
All reference to days are calendar days unless otherwise set out.
21. Governing Law
These GTC and any related dispute or order, order confirmation, supply agreement, distribution agreement etc. shall be governed by and construed in accordance with the laws of Norway. The Convention on International Sales of Goods shall not apply.
In case any dispute arises under or in connection with a Firm Order, these GTC or other agreement or issue between the parties, including dispute regarding validity or existence, the parties shall first try to solve it through negotiations. If the parties have not reached settlement within 8 weeks from one party having required such negotiation, then each of the parties may require the dispute to be submitted to the District Court of Oslo. SERO may alternatively, by notice to the Buyer within 6 weeks from having received notice from the Buyer that the dispute is referred to Oslo District Court, require that the dispute shall be finally settled by arbitration in Oslo in accordance with the Norwegian Civil Procedure Code, Chapter 32. The language of the arbitration proceedings shall be English and the number of arbitrators one.