Valid as of 1 January 2017
1. Scope
(a) General: These general terms and conditions apply exclusively for deliveries and sales and the associated services. Counter-confirmations from the purchaser regarding their own terms and conditions or purchasing terms are not recognised, even if Essencia performs services while aware of such contradictory conditions. The terms and conditions apply to business relationships even if they have not been expressly agreed once again.
(b) Deviating conditions: Deviating conditions apply only if they have been approved in writing or confirmed by Essencia. Confirmed deviations only apply in individual cases and will not necessarily apply subsequently.
2. Offer and contract conclusion
(a) Offer: Essencia offers goods and services to the buyer in the form of written or verbal offers or through the publication of items and price lists. These offers are not binding.
(b) Order: The purchaser orders the goods and/or services from Essencia in writing or verbally.
(c) Entitlements: Essencia delivers certain items only if recipients can prove that they hold a valid permit (e.g., for controlled substances). Essencia therefore has the right and is legally obliged to refuse deliveries if necessary.
(d) Order confirmation: Essencia confirms the purchaser’s order by means of a written order confirmation. The delivery contract is issued if the purchaser does not respond with an objection before the end of the following business day. A non-objection means implicit acceptance.
3. Right of withdrawal
(a) Exemption from obligation to deliver: Essencia is exempt from the obligation to deliver, meaning there is a right of withdrawal, in the case of (i) force majeure (ii) circumstances that are unforeseeable or not the fault of the company and that prevent or block the delivery (such as refusal to import by the customs authorities).
(b) Client’s right of withdrawal: The client has the right to withdraw from the agreement if there is a valid defect and Essencia is not able to remedy said defect within a reasonable period, e.g. by delivering a different batch.
4. Safety labelling
(a) Relevant labelling: The relevant safety labelling is described on the safety data sheets issued by Essencia. The information printed on the packaging labels is not necessarily complete (due to lack of space).
5. GMP and GDP
(a) GMP: Analysis certificates for pharmaceuticals (GMP items) contain a GMP statement. Deliveries with analysis certificates but without a GMP statement are not classified by Essencia as pharmaceuticals.
(b) GDP client declaration: Raw materials from Essencia’s pharmaceutical range are generally shipped in accordance with GDP guidelines. The client can waive GDP shipments by means of a (long-term) customer declaration. The decision as to whether this agrees with the intended use lies with the client. If required, the client is likewise responsible for revoking a signed long-term declaration in good time, i.e. before delivery by Essencia.
(c) GDP statements: GDP statements can be requested from Essencia. Essencia reserves the right to invoice any costs (such as for temperature recordings) to the recipient.
6. Delivery
(a) General: The delivery conditions apply in accordance with the order confirmation (see 2. (d)).
(b) Collection: Essencia does not refund delivery costs if receivers collect the goods themselves.
(c) Transfer of benefit and risk: Benefit and risk is transferred when: (i) the goods are handed over to a transport company. This is also the case when Essencia covers the transport costs. (ii) Essencia physically hands over the goods to the purchaser, meaning he collects them or is given access to them. (d) Transport damage: Essencia accepts no liability for damage in transit. The purchaser is responsible for arranging insurance against damage of any type. (e) After the transfer of benefit and risk, the purchaser is responsible for complying with legal and governmental regulations on import, transport, storage, sales, and use of the goods. The safety data sheet takes precedence and not necessarily the hazard and warning information on the labelling because this can be incomplete if there is insufficient space. (f) Delivery delays: Essencia accepts no responsibility for on-time delivery or liability for delivery delays.
7. Use
(a) Purchaser’s responsibility: Following the transfer of risk and benefit the purchaser is obliged to review and comply with applicable legal requirements.
(b) Delivery of samples: Samples delivered by Essencia are for testing purposes and not intended for sale. Sample deliveries are not subject to compliance with the GDP directives in accordance with 5 (c).
8. Client’s defect rights and liability claims
(a) Complaints and claims: If the goods suffer from a defect that occurred before the transfer of benefit and risk, or the service provided is unsatisfactory, the purchaser must make a report to Essencia within 28 days. If sampling is not required to determine the defect, the packaging must not be opened by the client.
(b) Liability claims: All legal defect rights are expressly excluded, insofar as legally permissible, and replaced by the rules contained in 8 (c) to 8 (h). Any further warranty, in particular the legally prescribed right of warranty or liability for defect or damage of any type is expressly excluded within the scope permitted by law.
(c) Delivery delay: The reimbursement for damage that occurs due to a delivery delay is excluded insofar as legally permissible.
(d) Consequential damages: Any liability for consequential damages or other damages that may result directly or indirectly from the use or processing of purchased products are expressly excluded insofar as legally permissible.
(e) Replacement goods: The exclusion of legal warranty rights in accordance with this clause also applies expressly to goods that are delivered as a replacement for defective goods.
(f) Inspection of incoming goods: The recipient must inspect the delivery or service upon receipt. The analysis values on the analysis certificate from Essencia do not release the recipient from the obligation to inspect at the time of receipt. If the recipient fails to inspect incoming goods immediately, the delivery is considered accepted.
(g) Upstream suppliers: Insofar as a defective delivery item involves a product that Essencia obtained in whole or in part from a third party, Essencia is entitled to assign its right to defect claims against the upstream supplier to the purchaser, and to refer the purchaser to his/her (judicial) recourse against the upstream supplier. In this case, a claim for a defective item can only be made against Essencia if the claims against the upstream supplier are not enforceable despite the assertion of a timely (judicial) claim.
(h) Returns: The client may return defective goods to Essencia insofar as the defect occurred before the transfer of benefit and risk. In so doing, the client must make arrangements with Essencia with regard, for example, to scheduling and type of transportation. Normally Essencia replaces the returned goods, cancels the invoice, or issues a credit.
(i) Goodwill: In exceptional cases Essencia is willing to take back non-defective goods (e.g. in the case of orders made in error). The goodwill gesture only applies to each individual case and will not necessarily apply subsequently. Essencia may invoice any reasonable expenses incurred in accepting returned goods (such as analytical activities). Essencia normally does not grant goodwill in the following cases: (i) goods custom-made or manufactured especially for the client. (ii) goods on or past their expiry date. (iii) pharmaceutical goods that were sent to the client without complying with the GDP directives.
9. Prices
(a) General: Prices that are not specified in the order confirmation (but are in the quotations or price lists on the Essencia home page) are not binding and merely represent a reference value.
(b) Value-added tax: Prices are always quoted exclusive of VAT. No VAT is included in export prices and no VAT is levied on export shipments.
(c) VOC: Prices are always quoted exclusive of VOC taxes.
(d) Shipping costs: Unless indicated otherwise on the order confirmation, shipping costs are not included in the price. This applies in particular when the shipment is carried out in compliance with the GDP directives (see also 5 (b)).
(e) Minimum order amount: Essencia invoices a small quantity surcharge for orders under the minimum order amount. This is clearly indicated on the order confirmation from Essencia.
10. Payment terms
(a) General: Unless otherwise agreed, payment terms are 30 days net from the invoice date without deduction of any discount, expenses, taxes, charges, fees, duties and the like. Off-setting of the purchase price owed against any claim against Essencia is forbidden.
(b) Default: In accordance with 10 (a), the purchaser is in default if payment is not received by the due date. No additional reminders or notifications will be issued. Default interest of 7% p.a. will be invoiced to the purchaser as from the first day after the due date
(c) Payment in advance: In the case of new clients, or if the client has questionable creditworthiness or a poor payment history, Essencia may make the delivery dependent on payment in advance without giving any reason.
(d) Partial payment in advance: For larger orders, Essencia may make the delivery dependent on partial payment in advance.
11. Limitation
(a) General: All claims made by the purchaser on whatever legal grounds are limited insofar as legally permissible to 12 months.
12. Applicable law and court of jurisdiction
(a) Legal relationship: Insofar as neither a main contract nor these general terms and conditions indicate otherwise, the legal relationship between Essencia and the purchaser is subject to Swiss law, excluding the UN agreement dated 11 April 1980 on contracts for the international sale of goods.
(b) Partial invalidity: Should any provision in these delivery conditions prove to be unenforceable in part or in whole, the parties to the contract will replace these provisions with a new agreement that meets the equivalent legal and economic purpose as much as possible The same applies for any gaps in the text of the contract.
(c) Court of jurisdiction: The sole court of jurisdiction for the purchaser and the supplier is the headquarters of Essencia. Winterthur, 28 November 2016.