APIE LIMITED – General Terms and Conditions of Sale and Delivery (“GTC”)

1 Scope

1. The following General Terms and Conditions, as amended, apply to all transactions relating to the sale and delivery of goods between APIE LIMITED (hereinafter referred to as “APIE“) and the customer. APIE is an affiliate of the Aspire Pharma Group. Customers may be any legal commercial entity recognised under Irish law, including but not limited to companies (public and private), partnerships, sole traders, or any other entity with legal capacity to enter into contracts and with official authorisation to purchase medicinal products as required by applicable law (“Buyers“). Private individuals are not permitted to purchase medicinal products directly. These General Terms and Conditions (GTC) do not apply to consumers as defined under Section 2 of the Consumer Rights Act, 2022.

2. APIE incorporated and registered in the Republic of Ireland, with a company number 773982, whose registered office is at 45 Mespil Road, Dublin, D04 W2FI, Ireland. APIE’s Head Office is located at 1st Floor, Building Two, The Green Dublin Airport Central, Dublin Airport, Swords Co. Dublin, K67 E2H3, Ireland.

3. Other terms, in particular general terms and conditions of the Buyer that deviate from the GTC shall only apply if APIE expressly agrees to their validity in writing. This requirement of consent shall apply in all cases, for example even if the Buyer refers to its GTC in the order and APIE does not expressly object to this.

4. Unless otherwise agreed, the GTC in the version valid at the time of the Buyer’s order shall also apply as a framework agreement for similar future contracts, without APIE having to refer to them again in each individual case. Any amendments to the GTC shall be communicated to the Buyer in writing or electronically, with reasonable advance notice prior to their effective date. The amended GTC shall only apply to future contracts entered into after such notice has been given to the Buyer.

5. APIE may amend these GTCs at any time. Amendments shall take effect on the date specified in the notice, unless a later effective date is specified. Significant changes (including those resulting in additional payment obligations or material restrictions of APIE’s performance obligations) shall be communicated to the Buyer in writing or electronically at least six weeks before the intended date of their entry into force. These significant changes shall become effective for future contracts unless the Buyer objects in writing before the change takes effect.

 2 Order

1. The order placed by the Buyer constitutes a binding offer. Only written or electronic orders are binding. Oral offers or orders shall not be binding under any circumstances. Changes and additions to these orders must be made in writing and approved by APIE. The offer is accepted either in writing (by order confirmation), electronically or by delivery of the goods to the Buyer.

2. By placing an order, the Buyer confirms that they possess all necessary regulatory and legal authorisations and documentation required for the purchase of the relevant products, including any special approvals for controlled or restricted items and that they are compliant with EU Good Distribution Practice (GDP; 2013/C 343/01) and any ISO or national legislation required for the products ordered. Prior to the first delivery, and at any time upon request, the Buyer must provide satisfactory evidence of their eligibility to purchase such products. If the Buyer fails to provide the required documentation, or if any authorisations are withdrawn, suspended, or otherwise rendered invalid, APIE may immediately cancel the order and refuse to deliver the products. The Buyer must within 24 working hours promptly notify APIE of any change in their regulatory status, including any changes to their premises, licensed activities and/or the types of products they are licenced to receive.

 3 Terms of Delivery

1. The place of performance shall be the Buyer’s nominated trading location. Shipping will be arranged from the address specified by APIE in writing.

2. Transport of goods to the Buyer’s nominated location shall be carried out by APIE and at APIE’s risk until delivery is completed, unless otherwise agreed in writing.

3. The risk of accidental loss or accidental deterioration of the goods shall pass to the Buyer upon delivery of the goods at the Buyer’s nominated trading location. APIE is not responsible for any goods which have been tampered with in any way or are dispensed outside of APIE’s original or approved packaging following delivery.

4. If the Buyer is in default of acceptance or culpably violates other obligations to cooperate, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the Buyer at the point in time at which the Buyer falls into default.

5. APIE endeavours to deliver as quickly as possible. Specified delivery dates are non-binding unless they have been explicitly stated in writing as a “binding delivery date by …”.

6. After delivery, including partial deliveries, the Buyer is responsible for ensuring that unauthorised third parties have no access to the ordered medicines and that the designated location is suitable and permissible for the proper storage of the specific medicines in compliance with EU GDP/ISO.

7. If delivery is delayed for reasons for which APIE is not responsible (non-availability of the goods), APIE shall inform the Buyer immediately and at the same time notify them of the expected new delivery date. If the goods are also not available within the new delivery period, APIE shall be entitled to withdraw from the contract in whole or in part.

8. If the Buyer either does not accept the delivery or delays it for other reasons for which the Buyer is responsible, APIE shall be entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs).

9. Unless otherwise agreed, deliveries shall be made under DAP Incoterms 2020, with the Buyer bearing all costs and risks associated with import clearance, customs duties, and any required licences or approvals.

10. The fulfilment of mutual obligations is subject to the proviso that any necessary export or transfer licences or other foreign trade approvals or releases are granted by the competent authorities and that there are no other legal obstacles due to APIE as exporter or transporter or by any of its suppliers/subcontractors.

11. APIE shall decide on the type of shipment, the shipping route and the transport company.

12. APIE shall not be liable for, and no claim shall be made against APIE in respect of, any failure or delay in the supply or delivery of goods and/or services where such failure or delay arises from the total or partial suspension of deliveries by APIE due to circumstances beyond its reasonable control.

 4 Acceptance, Returns, Warranty

1. The Buyer has no right of return for delivered goods that are free of defects in accordance with their order.

2. The Buyer shall duly comply with its obligations to inspect and give notice of defects in accordance with Sales of Goods Act 1893. The Buyer shall immediately inspect the goods received upon delivery for incorrect, short or missing deliveries and for any visible defects. Complaints/claims must be reported to APIE in writing within 5 working days of receipt of the goods, enclosing evidence. Otherwise, the shipment shall be deemed approved.

3. If incorrect, incomplete or missing deliveries are reported in good time in accordance with paragraph 2, APIE may either deliver a replacement, repair the goods or refund the purchase price.

4. Returns must always be notified to Customer Service at Movianto Deutschland GmbH at In der Vogelsbach 1, 66540 Neunkirchen, Germany, [email protected] and will be processed in accordance with the guidelines for EU GDP/ISO.

5. Credit for returned goods from premises covered by a current Wholesale Distribution Authorisation (WDA) will only be considered within 10 days from the despatch date from APIE’s warehouse facility. Claims from unlicensed premises without a WDA (e.g. hospitals and pharmacies) will only be considered within 5 days from despatch date from APIE’s warehouse facility for ambient products and will require a signed declaration of storage from an authorised individual covering the information required before goods can be uplifted and a full credit provided. Returns of cold chain products from unlicensed premises will not be accepted.

6. Returns that have not been approved by APIE will not be refunded.

7. The returned goods must be in the condition as originally supplied by APIE (i.e. no packages, pallets or containers opened, nor contents partly used, no serial numbers decommissioned, no damaged, marked or defaced goods, and no tamper-evident seals or labels broken, damaged, marked or defaced).

8. From delivery at the Buyer’s premises, no goods reported stolen or lost will be accepted for return or credited.

9. If APIE is unable to provide a replacement or rectify the defect, or if the same order is delivered repeatedly in a defective state, the Buyer may demand a reduction in price or withdraw from the contract. Any consideration already paid by the Buyer shall be refunded immediately in this case.

 5 Price, Payments

1. The purchase price is the price specified in APIE’s current price list at the time of the order. If a price has been agreed in writing between the parties, this price shall apply.

2. Prices are quoted DAP Incoterms 2020, including/excluding packaging unless otherwise stated.

3. All prices are net in euros plus statutory value added tax. Unless otherwise agreed, payments shall be made in euros.

4. The Buyer agrees that invoices from APIE will only be provided in electronic form and therefore agrees that they will not receive paper invoices, unless otherwise agreed. APIE will either make the invoices available for download in a password-protected area and notify the Buyer via the email address provided or use another secure method of delivery. The Buyer shall promptly inform APIE of any changes to the designated email address.

5. Electronic invoices shall be deemed transmitted and received once made available in the password-protected area or via another secure method. As access to the password-protected area ends three (3) months after termination of the business relationship, the Buyer is responsible for downloading and archiving all invoices in good time.

6. Payment of the purchase price shall be made exclusively to one of the accounts specified on the invoice. Unless otherwise agreed, the purchase price shall be paid without deduction within thirty (30) days of receipt of the invoice.

7. A discount/rebate shall only be granted upon express agreement between the parties.

8. The Buyer must notify APIE in writing of any objections to the information on the delivery note and/or invoices within two (2) weeks of receipt. If no objection is made within this period, the information on the delivery note and invoice shall be deemed accepted; the subject matter and content of the paid invoices shall be deemed approved at the latest upon payment.

9. For the shipment of medicines within Germany with a net order value of less than EUR 100.00, a flat-rate logistics fee of EUR 20.00 (for transport, tolls, packaging and other logistics costs, etc.) shall be charged to the Buyer.

10. APIE shall charge interest on arrears at a rate of 9% above the respective base rate of the European Central Bank p.a. APIE reserves the right to claim higher damages for default.

11. If the financial circumstances of the Buyer deteriorate or if APIE becomes aware of such circumstances after conclusion of the contract or if the Buyer defaults on a payment to APIE, all claims arising from the business relationship shall become due immediately.

 6 Retention of Title

1. APIE shall retain title and ownership of the goods supplied under this contract until full payment of the purchase price for those goods has been received.

2. The Buyer is responsible for ensuring compliance of the products with EU GDP/ISO from delivery.

3. If the Buyer defaults on payment or otherwise breaches this agreement, APIE may recover possession of the goods subject to retention of title as set out in herein (“Retained Goods”). Recovery shall be carried out in compliance with applicable laws, including trespass and data protection requirements.

4. After repossession, APIE may resell the Retained Goods (if of a permissible quality/safety/efficacy) and apply the proceeds to the Buyer’s outstanding liabilities, less reasonable costs of recovery and resale.

5. Until title and ownership passes, the Buyer shall:
   1. maintain the Retained Goods in a traceable satisfactory condition in accordance with EU GDP/ISO and maintain adequate insurance for the Retained Goods at replacement value; and
   2. Not pledge, charge, or otherwise encumber the Retained Goods.

6. The Buyer may resell the Retained Goods in the ordinary course of business before ownership passes, provided that:
   1. The Buyer does so as principal and not as APIE’s agent (and in which case title to the Retained Goods shall pass from APIE to the Buyer immediately before the time at which resale by the Buyer occurs);
   2. The Buyer holds the proceeds of such resale on trust for APIE;
   3. The Buyer immediately accounts to the Seller for such proceeds upon request.

7. The Buyer must notify APIE immediately if an application for the opening of insolvency proceedings is filed or if third parties (e.g. distraint) seize goods belonging to APIE. The Buyer is obliged to inform third parties of APIE’s rights and to notify APIE immediately.

8. Offsetting against claims of APIE is only permitted with undisputed claims that are recognised by APIE or claims that are legally established counterclaims. The same applies to rights of retention. APIE is entitled to offset claims to which a company of the APIE Group is entitled against the Buyer or to which the Buyer is entitled against a company of the APIE Group.

 7 Liability/Damages

1. Claims for damages by the Buyer – regardless of the legal basis – are excluded in the event of slight and simple negligence on the part of APIE and its vicarious agents. APIE shall only be liable for indirect damage that was not foreseeable at the time of conclusion of the contract if it or its vicarious agents are guilty of gross negligence or intent. The above limitations of liability shall not apply to mandatory statutory liability provisions.

2. The general limitation period for material defects and defects of title, contractual and non-contractual claims for damages shall, expire at the latest one year after delivery of the goods, unless a shorter statutory limitation period applies.

 8 Data Protection

1. Data use & protection

Personal data is processed in accordance with GDPR and EU data protection law, only to deliver the contract, meet legal requirements, and for legitimate business purposes, with appropriate security measures in place.

2. Customer rights & sharing

Customers have the right to access, correct, delete or object to the use of their personal data. Data is shared only with authorised service providers and transferred outside the EU/EEA only where legally permitted.

Details on data protection can be found at Privacy Policy – Aspire Pharma

9 Miscellaneous

1. This contract and all legal relationships between the parties are governed by the laws of the Republic of Ireland, excluding the UN Convention on Contracts for the International Sale of Goods (CISG) and International Private Law.

2. These general terms and conditions of sale and delivery are written in English and German. In the event of any discrepancies between the two versions, the English shall prevail.

3. Any future verbal side agreements must be made in writing to be valid, unless they are based on an individual contractual agreement. This also applies to any changes or waivers of this written form clause.

4. The exclusive place of jurisdiction for all disputes arising from this contract is Dublin, Ireland. APIE has the right to sue the Buyer at their place of business.

5. Should individual provisions of this contract be or become invalid or unenforceable, the remaining provisions shall remain in full force and effect. The parties shall replace any invalid provision with a valid provision that comes closest to the contractual and economic purpose of the invalid provision.