General Terms and Conditions of Sale

1. Agreement

1.1 Scope. These General Terms and Conditions of Sale (“General Sale Terms”) govern the terms of sale of any Products by B.Braun Lanka (Pvt) Ltd. (“BBLK”) to a Purchaser named in these General Sale Terms and the expression “Purchaser” shall include a Distributor appointed by BBLK for such Products. These terms apply to all subsequent transaction made between BBLK and the Purchaser even if no further reference is made to them in subsequent transactions.

“Products” shall mean goods supplied and sold by BBLK as described in the Schedules attached. Where no such Schedule is attached the goods supplied shall be as described and confirmed in the Order Confirmation (as defined herein) issued by BBLK.

1.2 Inconsistency. These Terms and Conditions may be used together as an addendum to an agreement for sale of goods between the Purchaser and BBLK or as an addendum to a distributorship agreement between BBLK and the Purchaser where the Purchaser has been appointed as a distributor by BBLK. In the event of any inconsistency between the sale/distributorship agreement and /or the terms of the distributorship agreement and/or these Terms and Conditions, the provisions of the sale/distributorship agreement shall prevail.

1.3 Exclusion of conflicting terms. All products sold by BBLK shall be sold on the terms and conditions herein and the terms of any Purchaser’s order which seek to vary or amend or is in conflict with these terms are hereby expressly objected to. All order confirmations issued by BBLK incorporate these General Sale Terms and delivery of Products is made by BBLK pursuant to these Terms.

1.4 No Exclusivity. The Purchaser does not have any exclusive rights of purchase of the Product from BBLK.

2. Purchase Orders and Availability

2.1 Purchase Orders. Unless otherwise agreed to by BBLK in writing, all orders to purchase (“Purchase Order”) shall be placed by Purchaser, in advance, and placed no less than 60 days lead time of the requested delivery date as stated in a purchase order issued by the Purchaser. All orders shall be subject to a minimum order sizes as implemented from time to time by BBLK. All Purchase Orders shall be made in writing in a form reasonably satisfactory to BBLK (which shall be subject to the terms and conditions of this Agreement), sent by courier, personal delivery, facsimile or electronic mail. Each Purchase Order shall state the quantity and type of the Products to be purchased, delivery date(s) (in accordance with the forecast, if applicable and unless otherwise agreed), destination, and confirmation of Price (as defined hereunder). No term or condition contained in any such Purchase Order, purchase acknowledgement, or other instrument shall alter, amend, modify, or supplement the parties' obligations hereunder unless specifically agreed in writing by BBLK.

2.2 Acceptance. All Purchase Orders received are subject to acceptance in writing by BBLK. Each Purchase Order is deemed to be an offer to purchase and when accepted whether in whole or in part shall from a contract under the terms of this agreement. All acceptances by BBLK (“Order Confirmation”) of Purchase Orders will be in the form of an order confirmation containing the accepted quantities of the Products, Price, delivery charges if any, and the estimated date of delivery (“Target Date”).

2.3 Sale of the Products. BBLK shall use commercially reasonable efforts to fill any accepted Purchase Orders.

3. Transport and Delivery

3.1 Trade Terms. Reference to trade terms such as EXW denoting Ex-Works, FCA denoting Free Carrier, CIF denoting Cost Insurance and Freight and other trade terms as well as the obligations of parties to a transaction shall be interpreted in accordance with Incoterms 2000 issued by the International Chamber of Commerce.

3.2 Delivery. Unless otherwise expressly agreed to by BBLK in writing, all Products will be delivered Ex-Warehouse, Colombo and delivery shall be constituted by a notice (“Delivery Notice”) issued by BBLK to the Purchaser informing the Purchaser that the Products are ready and available for shipment or transportation at BBLK’s premises.

If the Purchaser fails to accept the Products or fails to take delivery of the Products within 7 days of the date of the Delivery Notice, Purchaser will be liable for storage charges at a rate as may from time to time be charges by BBLK. BBLK may also arrange for storage with third parties and the Purchaser will be liable for storage charges charged by the third party.

3.3 Transport. At the request of a Purchaser, BBLK may agree to make transport and insurance arrangements and the cost shall be borne by the Purchaser and to be paid either in advance, at the request of BBLK or at the time of payment of the Purchase Price of the Products. Unless otherwise agreed BBLK reserves the right to select the route and mode of transportation and BBLK shall not be bound to select any route whether the same be regarded as cheapest or quickest of all given possibilities.

3.4 Delivery Date. BBLK will make all reasonable efforts to conform to delivery by the Target Date as specified in the Order Confirmation. If no Target Date is specified in the Order Confirmation, then the Products shall be delivered by such date as may be notified subsequently by BBLK. In no event will BBLK be responsible for any delays resulting from events of Force Majeure more particularly describe in Section 9.10.

3.5 Late Delivery. Should a delivery time be exceeded due to fault on the part of BBLK and other than due to the events more particularly described in Section 9.10, then the Purchaser may cancel the relevant order, provided however that the Purchaser and BBLK shall have agreed to a reasonable extension of the period to effect delivery and BBLK remains unable to fulfill the delivery by the expiry of the extended period. Any claims for damages arising from late delivery shall only accrue upon expiry of the extension of the period for delivery and the quantum of damages shall be limited to the payment of interest at the prevailing Average Weighted Lending Rate applicable as at the expected date of delivery quoted by the Central Bank of Sri Lanka on the Price of the delayed delivery and for the period commencing from the accrual of the claim to the date of actual delivery or cancellation as the case may be. All claims for consequential damages which may be suffered by the Purchaser are hereby excluded.

4. Inspection of products & Defects

4.1 Inspection of Products. The Purchaser shall be allowed a period of 3 days (“Inspection Period”) to notify the Company of any damage, defects to the Products which are discernable by a visual inspection of the Products. Where a notice is issued by the Purchaser, the Company shall replace defective Product or refund or credit the Price pursuant to this Section 4.1, provided that this Section 4.1 shall not apply to any defect in the Products which has been subjected to misuse, mishandling, storage in a manner inconsistent with Product labeling, neglect, modification, or unusual physical or chemical stress after delivery.

In the event no notice is issued by the Purchaser within the Inspection Period, the Products shall be deemed to be in all respects in accordance with this Agreement save for any latent defects.

4.2 Latent Defect. The Company shall compensate the Purchaser for the value, as provided in Section 6.3, of defective Products, in the Purchaser’s possession, including returns from customers only in respect of latent defects which is hereby agreed as defects which are due to manufacturing process which are a breach of the warranty as provided in Section 6.1 and which defect must not be discernable at the time of delivery to the Purchaser. This duty to compensate shall not apply to Products which have been damaged due to improper storage conditions or Products that may have been kept in storage beyond its ‘Use by’ date.

5. Price, Payment Terms, Risk and Title in Products.

5.1 Prices. BBLK Company shall sell the Products to the Purchaser at the Prices set forth on against the Product in the price Schedule attached hereto. Where no Schedule is attached, the goods are sold at the quotations given by BBLK as to prices. Save where BBLK has expressly agreed to a fixed term of supply, Prices are variable and may be varied at any time by BBLK. Prices as quoted do not include any point of sale tax such as value added tax or goods and services tax which is imposed by law which shall be paid by the Purchaser.

5.2 Applicability. Such variation will also however apply to Purchase Orders which have been confirmed provided that in the event of a price increase, the Purchaser shall be entitled within 5 business days of notification of increase, cancel any confirmed Purchase Orders which are so affected by the price Increase.

5.3 Packaging. The Prices include the Company’s standard packaging existing as of the date of shipment. If the Purchaser requests and the Company agrees to provide non-standard packaging, the Purchaser shall pay the Company an additional fee for such packaging in accordance with the Company’s then existing pricing policies.

5.4 Risk of Loss. Risk in the Products shall pass upon delivery.

5.5 Payment Terms. The Purchaser shall pay the Company the full Price of each order net of any withholding and other taxes. Unless otherwise agreed to by the Company in writing at the time of acceptance of the purchase order, payment shall be made in advance prior to delivery, in cleared funds to the bank nominated by the Company.

5.6 Other payments. Any amounts owed to the Company in connection with the Product, including without limitation, any costs the Company incurs on Purchaser’s behalf for shipping, freight, insurance, and duties and all other amounts due to the Company under this Agreement shall be paid in by the Purchaser in the same manner as the Price. Where the Company agrees to accept letter of credit in payment, each letter of credit shall be in form and substance acceptable to the Company and must be received and approved by the Company (in its sole discretion) at least fifteen (15) days prior to delivery of an order. The Company shall have no obligation to fill any order for which a letter of credit has not been provided by the Purchaser and approved by the Company in accordance herewith.

5.7 No set off. Purchaser shall pay Company each undisputed invoice within the period specified in the Agreement. If Purchaser disputes an invoice, Purchaser shall pay the undisputed portion and payment of the disputed portion of the invoice shall be withheld until resolution of the dispute.

Purchaser may not, by reason of set off, counterclaim, abatement or other similar deduction, withhold payment of any amounts due to Company and Purchaser shall not be entitled to deduct or set off any amounts payable to Company by Purchaser against any amounts payable by Purchaser to Company.

Purchaser shall not have any right to set off or withhold any amounts due to the Company hereunder arising out of, or based upon, any counterclaim, breach of contract, tort or other action against the Company.

5.8 Remedies on default . Without prejudice to any other of the Company’s rights in this Agreement, if the Purchaser shall default on payment of any sums when due to Company, the Company may do any one or more of the following:-

hold the Purchaser’s pending orders;
reduce or revoke and credit extended to Purchaser and to require immediate payment of all sums owing by Purchaser to Company;
require payment of cash in advance for any future orders;
charge interest on any sums due at a rate of 1.5% per annum from the due date to date of payment;
at the Purchaser’s cost and expense, recover the Products from the Purchaser;
Passing of Property. Notwithstanding the passing of risk, title in the Products will pass only upon receipt of full payment of the Price by the Company.

6. Warranty and Disclaimer.

6.1 Warranty. The Company warrants that the Product delivered to the Purchaser hereunder (i) shall be consistent with the description and specifications for such of the Products that the Company may supply to the Purchaser from time to time, as in effect at the time of shipment, and (ii) shall be free from defects in materials and workmanship for the Products’ stated shelf life (the "Warranty Period").

6.2 Limitation of Warranties. The foregoing warranty is in lieu of all other warranties or obligations, express or implied and the Company hereby disclaims all implied warranties including without limitation the warranties of merchantability and fitness for a particular purpose and non infringement of any intellectual property rights of any third party.

6.3 Remedies and Limitation. Subject to the given of notice within the Inspection period as stipulated in Section 4.1, the Company shall replace or, at the Company’s option, refund the Price or credit (against the Price of future purchases of the Products) the Price of any of the Products that does not comply with the warranty set forth in Section 6.1. At the Company’s request and expense, Purchaser shall return any Product to be replaced or for which the Price is to be refunded or credited. The Company’s obligation to replace any of the Products which may be defective or refund or credit the Price pursuant to this Section 6.3 shall not apply to any of the Products that has been subjected to misuse, mishandling, storage in a manner inconsistent with the Product’s labeling, neglect, modification, or unusual physical or chemical stress after delivery.

6.4 Limitation of Remedies and Liability. The Purchaser’s sole and exclusive remedy for any defective Products including any claim by third parties made against the Purchaser shall be a refund or a credit or a replacement as provided in Section 6.3. In no event shall the Company be liable for the cost of any substitute goods or for any loss of profits or for any other special or consequential, direct or indirect, damages, howsoever caused, even if the Company has been advised as to the possibility of such damages. To the full extent permitted by law, the Purchaser waives, for itself and for any of its own customers or end users of the Products, all rights and remedies against the Company, whether in contract or in tort or otherwise, not provided for in this Agreement.

7. Trademark and Patent Protection.

7.1 General. Purchaser acknowledges the validity of and the Company’s ownership of all patents, trademarks and other rights to the Products. The Purchaser acknowledges that all trademarks used by the Company in connection with the Products and any foreign language translations thereof ("Company Trademarks") are the sole property of the Company.

7.2 Use of trademark. At the Company’s request, the Purchaser shall use Company Trademarks on packaging for Products ordered from the Company. The Purchaser shall not use Company Trademarks other than as expressly permitted by the Company in writing.

7.3 No Technology Transfer. Except as provided in Section 7.2, neither party shall acquire any right, title, or interest in any trademark, trade name, logo, patent, technology, domain names, or know-how of the other party by reason of this Agreement. Each party shall be responsible for registering, as necessary, its own trademarks, trade names, and logos and for obtaining patent or other protection for its own technology; provided that the Purchaser shall provide the Company with such assistance as the Company shall reasonably request, including the execution and delivery of documents, to protect or preserve any Company Trademarks or other intellectual property rights of the Company.

7.4 Infringement. To the best of the Company’s knowledge the Company has not, in the production of the Products or in the use of any trademarks or names in the marketing and selling of the Products infringed upon any intellectual property rights of any third party. The entering into of this Agreement and the sale of the Products bearing the Company’s trademarks shall not however be construed as a warranty of non-infringement by the Company.

The Purchaser shall immediately give the Company written notice of any infringement of the Company’s trademarks, patents, or trade secrets that the Purchaser becomes aware of and, at the Company’s request and expense, cooperate with the Company to protect the Company’s trademarks, patents, and trade secrets against such infringement.

8. General Provisions.

8.1 Non-assignment. The Purchaser may not assign, transfer, or sell its rights under this Agreement, or delegate its duties hereunder, to any person including any Associates (as defined below) of the Purchaser, without the prior written consent of the Company, which may be granted or withheld in sole discretion of the Company. A transfer of a controlling interest in the Purchaser shall constitute an assignment. Any purported assignment without the Company’s consent shall be void and shall constitute a material breach of this Agreement.

8.2 Entire Agreement; Modification. This Agreement contains the entire and final agreement between the parties. No modification of any of its provisions, or any future representation, promise, or addition, shall be binding upon the parties unless made in writing and signed by both parties.

8.3 Waiver. A waiver of any obligation the Purchaser has under this Agreement shall be effective only if in writing signed by the Company. Any waiver shall not affect the Company’s right to require strict compliance with this Agreement in the future.

8.4 Indemnification. The Purchaser shall defend, indemnify and hold harmless the Company, its affiliates and each of their respective shareholders, officers, directors, agents, and employees from any claims, demands, loss, damage, liability, or expense, including attorney fees and costs (however incurred, including at trial, on appeal, and on any petition for review), arising out of the acts or omissions of Purchaser or its Affiliates, agents, sub-distributors or employees or agents or any breach by the Purchaser of any provisions or representations contained herein.

8.5 Notices. Any notices hereunder shall be given in writing directed to the address of each party set forth on the cover page of this Agreement, or to such other address as either party may substitute by written notice to the other, and shall be deemed given (i) when personally delivered; (ii) if sent by an international courier service, on the third business day after deposit with such courier, properly addressed and fee prepaid or billed to sender; (iii) if sent by facsimile, upon and after the receipt of a machine-generated written confirmation report corresponding to the notice given evidencing the proper facsimile number of the receiving party, provided a copy of such notice is also sent by mail.

8.6 Governing Law. This agreement shall be governed by the laws of Sri Lanka and the courts in Sri Lanka shall have non exclusive jurisdiction.

8.7 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but both of which together shall constitute one and the same instrument. A facsimile transmission of a signed original shall have the same effect as delivery of the signed original.

8.8 Currency. All amounts payable under this Agreement shall be paid in Sri Lankan Rupees unless otherwise agreed in writing. All payments shall be received clear of any withholding or other taxes and bank charges.

8.9 Agency. The Purchaser is an independent business and has no power, right, or authority to bind the Company or to assume or to create any obligation or responsibility, express or implied, on behalf of the Company. The Purchaser shall not take any action that could lead a third party to believe it has such authority. Nothing stated in this Agreement shall be construed as creating relationships of partners, employer and employee, franchiser and franchisee, or principal and agent between the parties.

8.10 Force Majeure. Neither party shall be liable for any delay or default in performing its obligations (other than payment obligations and the Purchaser’s obligations to obtain regulatory approval for import and sale of the Products) if such default or delay is caused by any event beyond the reasonable control of such party, including, but not limited to, acts of nature, war or insurrection, civil commotion, destruction of production facilities or materials by earthquake, fire, storm or flood, labor disturbances or strikes, epidemic, materials shortages, equipment malfunction or other similar event. The party suffering such cause shall immediately notify the other party of the cause and the expected duration of such cause. If either party's performance is delayed by more than 60 days pursuant to this Section 9.10, the other party may immediately terminate this Agreement by written notice given before the affected party resumes performance.

8.11 Associates. Any breach or violation of any term of this Agreement by any Associates of the Purchaser or of any sub-distributor or agent authorized in accordance with this Agreement shall be deemed to be a breach or a violation by the Purchaser. An "Associate" is (i) a director or officer of the Purchaser; or (ii) a person or entity controlling, controlled by, or under common control with the Purchaser and their directors and officers; or (iii) a person or entity related to or in which the directors and officers referred to in (i) and (ii) have substantial interest in .

8.12 No Third Party Beneficiaries. No person or entity, including (without limitation) any sub-distributor or agent of Purchaser (even if approved by the Company), shall be a third party beneficiary under this Agreement.

8.13 Restriction in sale: The Purchaser acknowledges that the Products sold to the Purchaser are marked and labeled country specific. The Purchaser undertakes that the Purchaser will not onward sell the Products to any party whom the Purchaser knows or reasonably ought to have known intend to resell the Products outside of Sri Lanka. The Purchaser also undertakes to procure from the buyer of the Products an undertaking similar to this undertaking. The Purchaser agrees that this undertaking is given for the benefit of all related companies of the Company.

8.14 Representations Regarding Foreign Laws. The Purchaser (if a company operating in a jurisdiction outside Sri Lanka) recognizes that the Company is not fully familiar with the laws, rules, regulations and policies of each jurisdiction within the outside Sri Lanka and that the Company has entered into this Agreement with the Purchaser (and will perform this Agreement) in reliance upon the following representations and warranties made by the Purchaser on the date hereof and on each date that Product is shipped or sold that none of this Agreement, the relationship created hereby or the performance hereof is contrary to the laws, rules, regulations or policies of any government, commission, agency or instrumentality having jurisdiction within which the Purchaser is operating.

8.16 Payments: Purchaser confirms that the Purchaser has not made any payments nor has Purchaser refunded and will not refund, either directly or indirectly, any funds to any director, officer, employee or other representative of the Company.

8.17 The Company’s Remedies. The Company’s exercise of any of its rights and remedies under this Agreement or at law following the Purchaser’s breach shall not be the exclusive rights or remedies of the Company and shall in no way limit the Company’s additional rights or remedies available to it under this Agreement or law. Without limiting the foregoing, in the event of a breach by the Purchaser of any of its obligations under this Agreement, the Company may, upon notice to the Purchaser and as determined in the Company’s sole discretion, terminate this Agreement in its entirety or in part or suspend the Company’s performance under this Agreement

8.18 Official Language. The official language of this Agreement is English. Documents or notices not originally written in English shall have no effect under this Agreement until they have been translated into English, and the English translation shall then be the controlling form of such document or notice.

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