1. Preamble
1.1
These terms and conditions of sale (the “Terms and Conditions”) apply to all sales and deliveries of products from Kinami Limited, Room 4, Office 18, Block 19, Vicenti Buildings, Triq Id-Dejqa, Valletta, VLT 1432, Malta, Company Number C107347 (“Kinami Limited”) and your company as supplier (the “Supplier” (whether singular or plural)).
1.2
These terms and conditions are incorporated into the agreement between the parties by way of reference from the written purchase order submitted by Kinami Limited to the Supplier and forwarding of the terms and conditions to the Supplier.
1.3
Any and all products supplied by Kinami Limited are covered by these terms and conditions including but not limited to, medical devices, cosmetics and disposables.
1.4
These terms and conditions will co-exist with any other agreements concluded by the parties and will take precedence in case of any inconsistencies.
2. Supply and delivery
2.1
Kinami Limited and the Supplier will agree to the details of the supply, and Kinami Limited will subsequently confirm the agreement in the purchase order to the Supplier. Hereinafter, the Supplier will issue a pro forma invoice to Kinami Limited. In case of inconsistencies between previous agreements on the purchase, the purchase order and/or the pro forma invoice, the purchase order will take precedence if the Supplier has not objected to the contents thereof within 48 hours from receipt thereof.
2.2
Unless otherwise agreed, the products must be delivered at Kinami Limited’ address, warehouse or offices according to the instructions, including the delivery time set out in the purchase order.
2.3
Kinami Limited will pay invoices at the time set out in the purchase order.
2.4
If products are not supplied to Kinami Limited at the agreed time, then Kinami Limited is entitled to terminate the purchase order. If Kinami Limited wishes to terminate the purchase order according to this clause, Kinami Limited must notify the Supplier thereof no later than 48 hours after the agreed time of delivery. In the event that any prepayment has been made, such prepayment must be returned in full and without any deductions to Kinami Limited within 72 hours from receipt of the cancellation of the purchase order.
3. Back orders
3.1
The Supplier must inform Kinami Limited as soon as possible if a product is in back order or for any other reasons cannot be delivered fully or partly within the agreed time of delivery.
3.2
Back orders must be delivered without undue delay. Kinami Limited must be notified of the new time of delivery.
3.3
Kinami Limited reserves the right to cancel back orders and/or delayed deliveries entirely or partly up until the time of notice of dispatch to Kinami Limited.
3.4
Unless otherwise set out in the purchase order, expiry of products must upon delivery be at least 6 months remaining shelf life.
4. Consignment
4.1
The products must be delivered to Kinami Limited ready for transportation in packaging and with labelling appropriate to the storage of products and mode of transport reasonably specified by Kinami Limited, in accordance with the agreement, these terms and conditions as well as applicable legislation and industry standards.
4.2
Transport cartons must be marked with the Supplier’s name and be free of old and irrelevant labels and markings.
4.3
The Supplier must place documentation of the following information on or inside the transport carton:
4.4
The Supplier must use its best efforts to ensure that products are delivered suitable packed on pallets and/or in transport cartons of an optimum size and quantity. Onward transfer must be taken into account.
4.5
If Kinami Limited bears the risk of freight of the products from the Supplier, the Supplier will cooperate fully and loyally with Kinami Limited in its efforts to establish a claim against the carrier.
4.6
In case of Kinami Limited return of the products to Supplier, irrespective of the reason for this, the Supplier bears the risk of the products during transport.
5. Information
5.1
In connection with a purchase order submitted by Kinami Limited, the Supplier must upon receipt thereof and no later than 48 hours thereafter, provide information, e.g. in a proforma invoice, of:
5.2
Each shipment must be accompanied by one delivery note per delivery. The delivery note must contain the following information:
5.3
Further, upon shipment, the Supplier (in case they are responsible for transportation) must immediately per email to Kinami Limited provide information on:
5.4
Failure to supply any of the information set out in this section will be considered a material breach of the purchase order.
6. Purchase of medical devices (additional requirements)
6.1
The Supplier warrants that (i) all medical devices purchased by Kinami Limited carry a valid and legal CE marking and (ii) that manufacturer established outside the EU has appointed a representative in the EU. Furthermore that all products supplied as a minimum carries English language on the outerpack and leaflet.
7. Quality control
7.1
To the extent permitted under applicable legislation, the Supplier must perform out-going quality control to ensure the quality of products delivered to Kinami Limited. The Supplier must use its best efforts to perform the quality control in accordance with applicable legislation and best industry practices.
8. Obligations to inform and product recalls
8.1
The Supplier must within 5 days from the time when information on an adverse event came or should have come to the Supplier’s knowledge provide any available information thereon to Kinami Limited. In this respect, an adverse event means (i) any malfunction, failure, defect or deterioration in the characteristics and/or performance of a product, as well as any inadequacy in the labeling or the instructions for use which, directly or indirectly, has, might lead to or might have led to the death of a patient or user or of other persons or to a serious deterioration in their state of health and (ii) any technical or medical reason in relation to the characteristics or performance of a product leading to systematic recall of products of the same type by the Supplier.
8.2
The Supplier must immediately inform Kinami Limited about any and all complaints, which may refer to the products. The information provided must include a full and complete description of the complaint and any action taken in response to the complaint by the Supplier.
8.3
If the Supplier becomes aware of any other information regarding the products, intellectual property rights or infringements of such regarding the products that the Supplier believes is reasonably likely to be of importance to Kinami Limited, it must immediately report that information to Kinami Limited. The Supplier will have sole conduct of the defence thereof, at the Supplier’s expense. Kinami Limited will co-operate in such defense, the extent reasonably requested by the Supplier, at the Supplier’s expense. The Supplier on must an on-going basis provide all documentation in such case to Kinami Limited.
8.4
Kinami Limited will notify the Supplier immediately in the event of Kinami Limited’ knowledge about a product recall.
9. Warranties
9.1
The Supplier warrants that the products delivered to Kinami Limited (i) are supplied at the agreed time, (ii) correspond to what has been ordered, and (iii) have been duly stored according to storage conditions of the product in transit. At request, the Supplier must provide Kinami Limited with supporting documentation thereof (in case they are responsible for transportation).
9.2
Further, the Supplier warrants that Kinami Limited is entitled to resell the products in wholesale and that there are no limits for wholesale distribution/sales of the products worldwide.
9.3
The Supplier warrants that any handling obligations attached to the products have been complied with by Supplier and its previous suppliers, and that Supplier will supply documentation for such handling immediately upon the request of Kinami Limited.
10. Regulatory matters
10.1
Kinami Limited disclaims all liability for its customers’ obtaining and maintaining any required marketing permissions or for fulfilling any regulatory registration requirements for the products which are to be marketed or sold by the Customer.
11. Set-off
11.1
Kinami Limited is entitled to set off any amount payable, whether stemming from the same or other purchase orders, to the Supplier if the Supplier has delivered products to Kinami Limited which will entitle Kinami Limited to a refund of the purchase sum or other liability on the part of the Supplier.
12. Liability
12.1
Kinami Limited is liable to pay damages in accordance with the ordinary rules of Danish law with the limitations and exclusions set out in these terms and conditions.
12.2
Kinami Limited will not pay damages for any indirect losses or consequential damage suffered by the Supplier or any third party. Indirect losses or consequential damage include but are not limited to loss of business opportunities, loss of profit, loss of goodwill, loss of interest and duty to pay any liquidated damages, penalties or fines.
12.3
Kinami Limited’s total aggregated liability for any and all claims including damages is limited to an amount equal to the purchase price paid for the product(s) to which the claims relate. The aforesaid monetary limitation applies irrespective of the basis thereof and must to the widest extent possible include claims based on acts of negligence (whether ordinary or gross negligence), strict liability, product liability, etc.
13. Governing law and venue
13.1
These terms and condition, including disputes regarding their existence or validity, are governed by Danish law, irrespective of any conflict of laws rules, which could otherwise result in the application of the laws of another jurisdiction to the dispute.
13.2
Any dispute arising out of, or in connection, with this these terms and conditions, including disputes regarding their existence or validity, must be settled by the ordinary Danish courts, and if possible before the court of Frederiksberg as the court of first instance.
13.3
Notwithstanding clause 13.2, as regards Suppliers in countries which are not a party to a mutual convention on recognition of judgements with Malta and are signatories to the New York Arbitration Convention, any dispute arising from or related to these Terms and Conditions shall be resolved exclusively by arbitration administered by the Malta Arbitration Centre in accordance with its arbitration rules in effect at the time the proceedings are initiated. The Malta Arbitration Centre will appoint a sole arbitrator to act as the chairman of the arbitral tribunal. The arbitration proceedings shall take place in Valletta, Malta.”
1. Preamble
1.1
These terms and conditions of sale (the “Terms and Conditions”) apply to all sales and deliveries of products from Kinami Limited, Room 4, Office 18, Block 19, Vicenti Buildings, Triq Id-Dejqa, Valletta, VLT 1432, Malta, Company Number C107347 (“Kinami Limited”) to the customer (the “Customer”).
1.2
Unless otherwise agreed in writing, all products sold by Kinami Limited to the Customer are covered by these Terms and Conditions, including but not limited to, medical devices, cosmetics and disposables (the “Product(s)”).
2. Orders
2.1
A binding agreement between Kinami Limited and the Customer is concluded when Kinami Limited has confirmed the Customer’s purchase order for Products (the “Purchase Order”) by issuing a proforma invoice.
2.2
Any statement contained on any Purchase Order or similar document, which is not specifically confirmed in writing by Kinami Limited by issuing a proforma invoice, will not be considered an agreement between the parties.
2.3
All proforma invoices are subject to availability of the Products, and Kinami Limited reserves the right to cancel any proforma invoice or agreement in accordance with clause 14 below.
2.4
A Purchase Order is binding on the part of the Customer.
3. Compliance with applicable laws and regulations
3.1
Kinami Limited acts as an international wholesaler. Except as specified in these Terms and Conditions, Kinami Limited does not assume any liability for compliance with legislation applicable to the Customer or the Products in jurisdictions in which the Customer is established or conducts business.
3.2
By accepting these Terms and Conditions the Customer proactively takes the responsibility of being in compliance with and strictly follow current international and local legislation in force for all handling of the Products.
3.3
The Customer warrants that it will obtain and maintain all permits, licenses and authorisations, and make all required notifications to relevant authorities, necessary for the import, marketing and distribution of the Products, including for reviewing and approving all product packages, labels and product information (e.g. the summary of product characteristics and the package leaflet) to ensure compliance with applicable laws and regulations.
3.4
The Customer warrants that it will be responsible for all post marketing obligations (if any), including market surveillance activities, such as reporting of substantial changes to the product specifications and quality systems, reporting of adverse events, handling of complaints, customer notifications and recalls.
3.5
The Customer warrants that any handling obligations or selling restrictions attached to the Products (following from e.g. these Terms and Conditions, the product package or applicable laws and regulations) as to further resale or import of the Products will be complied with, and that the Customer will impose such restrictions on any subsequent customers of the Products.
4. Pricing
4.1
Prices stated in pricelists and previously paid prices are not binding with regard to subsequent Purchase Orders.
4.2
Unless otherwise stated, all prices are exclusive of VAT, custom duties, taxes and the like.
5. Payment
5.1
Unless otherwise agreed in writing, the Products are subject to payment in advance to Kinami Limited. Shipment of the Products will not be initiated before payment has been received by Kinami Limited.
5.2
The Products shall remain the property of Kinami Limited until the Customer has settled all its obligations, including payment in full of the purchase price and any default interest.
5.3
If the Customer fails to pay any sum on the due date for payment, Kinami Limited is entitled to charge default interest at the rate of 2 per cent per calendar month or fraction of month from the due date.
5.4
The Customer is not entitled to set off any amounts payable to Kinami Limited, whether stemming from the same or other Purchase Orders.
6. Delivery
6.1
Kinami Limited must deliver the Products as agreed between the parties to the Customer and perform its obligations in accordance with the proforma invoice and these Terms and Conditions.
6.2
Applicable delivery terms (e.g. ex works or DAP) are set out in the proforma invoice issued by Kinami Limited. Unless otherwise stated in the proforma invoice, the Products will be delivered ex works (Incoterms 2020) at Kinami Limited’ appointed facility.
6.3
In case of delay, Kinami Limited must promptly notify the Customer thereof. Delay is only a material breach of these Terms and Conditions if such delay persists for more than 14 days. In case of multiple shipments the 14 days will be calculated per shipment.
6.4
Kinami Limited reserves the right to withhold the delivery of the Products if any sum due to Kinami Limited is overdue or if, in the opinion of Kinami Limited, the credit standing of the Customer has been impaired for any other reason, until such time as payment is received.
6.5
The sole and exclusive remedy of the Customer in case of delay is a credit or repayment of the purchase sum, at the discretion of Kinami Limited.
7. Defects
7.1
Except as expressly stated in these Terms and Conditions, Kinami Limited makes no representation, statement of fact, promise or warranty of any kind or nature, express or implied, with respect to the Product or its merchantability or fitness for a particular purpose.
7.2
Products delivered by Kinami Limited are deemed to be free of any defects and approved by the Customer, if defects are not reported in writing to Kinami Limited as soon as they are discovered, and in no event later than 3 days after receipt of the Products by the Customer. The notification to Kinami Limited must include a full and complete description of the complaint and any action taken in response to the complaint by the Customer.
7.3
The Customer warrants that the Customer, and if the Customer is not entitled to do so, then any subsequent customers who are entitled thereto, will perform an appropriate inspection of the Products delivered by Kinami Limited immediately on delivery of the Products.
7.4
In the case of justified and properly notified complaints, Kinami Limited is only be obligated, at its discretion, to reduce the price, repair the defect, replace the Products or take them back and refund the purchase price. These are the sole remedies available for the Customer.
7.5
Products, which Kinami Limited consents or directs in writing to be returned, will be returned (Incoterms 2020) by the Customer to Kinami Limited or such other destination directed by Kinami Limited. Kinami Limited shall decide means of transportation (e.g. by ship, air, truck) and forwarding agent in each case.
8. Products damaged in transit
8.1
In case Kinami Limited bears the risk of freight of the Products to the Customer according to the proforma invoice, e.g. if ex works is agreed, any claims for loss, shortage, breakage, leakage or other damage occurring in transit must be notified to Kinami Limited at [email protected] immediately and no later than 3 days after the Customer has obtained or should have obtained knowledge thereof. Claims received after this time limit are not accepted.
8.2
Notification must be accompanied by relevant pictures of the loss and the report made by the carrier, shortage, breakage or damage. Claims submitted by the Customer without appropriate documentation will be rejected.
8.3
The Customer will cooperate fully and loyally with Kinami Limited in its efforts to establish a claim against the carrier.
8.4
The sole and exclusive remedy of the Customer in case of damage in transit is a replacement order or repayment of the purchase sum, at the discretion of Kinami Limited. The Customer disclaims all other remedies (including but not limited to indirect and consequential damages, etc.) in case of damages in transit.
8.5
In any case, Kinami Limited is not liable for damages in transit where such damages amount to less than EUR 700. The amount is calculated per Purchase Order.
9. Liability
9.1
Kinami Limited is liable in accordance with the ordinary rules of Malta law with the limitations and exclusions set out in these Terms and Conditions.
9.2
Kinami Limited is not liable to the Customer for damages for any indirect losses or claims, including but not limited to claims for damages not pertaining to the Products, loss of profit, loss of production, loss of goodwill, operating losses or any other indirect losses.
9.3
Kinami Limited’ total aggregated liability for any and all claims including damages and/or refund of purchase price is limited to an amount equal to the purchase price paid for the Products to which the claims relate. The aforesaid monetary limitation applies irrespective of the basis of the liability and will to the widest extent possible include claims based on acts of negligence (whether ordinary or gross negligence), strict liability, product liability, etc.
9.4
Any claims, including claims for breach, remediation of defects and delays, will be barred and obsolete 3 months following delivery of the Products, irrespective of whether the Customer was or should have been aware of the existence of the claim.
10. Third party rights
10.1
The parties agree that Kinami Limited assumes no liability for the Products’ possible infringement of any intellectual property rights of third parties.
10.2
In the event that the Customer receives notice or is otherwise informed of any claim, suit or demand on account of any alleged infringement of intellectual property rights of third parties relating to the Products, the Customer must promptly notify Kinami Limited thereof.
11. Product liability
11.1
Kinami Limited is not liable bodily injury or damage to products caused by the Products, save to the extent such liability cannot be excluded under applicable mandatory law.
11.2
Kinami Limited is in no event liable for damage to property caused by the Products after delivery has taken place and/or whilst in the possession of the Customer, including but not limited to damage to products manufactured by the Customer or to products of which the Customer’s products form a part.
11.3
Kinami Limited’ liability will in no event exceed the purchase sum for the Products giving rise to the claim per year, except in relation to personal injury.
11.4
If Kinami Limited incurs product liability towards a third party that the Customer is rightfully liable for, the Customer shall indemnify Kinami Limited if and to the same extent as the liability of Kinami Limited is limited in accordance with this clause 11, i.e. including but not limited to situations where Kinami Limited is held liable towards the third party although no failure or negligence by Kinami Limited is proven or where such failure or negligence by Kinami Limited is proven, but the damages to be paid by Kinami Limited to the third party exceeds the figures mentioned above.
11.5
Kinami Limited is entitled to file a claim against the Customer at the same venue as a third party has filed a claim against Kinami Limited in relation to a dispute concerning product liability arising from the Products.
12. Adverse event reporting and recall
12.1
The Customer must within 5 days from the time when information on an adverse event came or should have come to the Customer’s knowledge provide any available information thereon to Kinami Limited. In this respect, an adverse event means (i) any malfunction, failure, defect or deterioration in the characteristics and/or performance of a Product, as well as any inadequacy in the labelling or the instructions for use which, directly or indirectly, has, might lead to or might have led to the death of a patient or user or of other persons or to a serious deterioration in their state of health and (ii) any technical or medical reason in relation to the characteristics or performance of a product leading to systematic recall of Products of the same type by the Customer.
12.2
If the Customer becomes aware of any other information regarding the Products, including possible infringement of intellectual property rights, that the Customer believes is reasonably likely to be of importance to Kinami Limited, it must immediately notify Kinami Limited.
12.3
Kinami Limited will notify the Customer immediately in the event of Kinami Limited’ knowledge about a product recall and will provide instructions on how to assist in returning all affected products. Kinami Limited may determine the recall measures required from the Customer on a recall-by-recall basis, and the Customer must comply with such measures unless such instructions are in violation of laws and regulations applicable to the Customer. Without further instruction, the Customer must provide to Kinami Limited any available documentation on seizure notices from public agencies and recall notices sent to the Customer’s subsequent customers. The Customer bears its own cost in connection with recalls of the Products. The Customer provides all reasonable assistance requested by Kinami Limited in the conduct of a recall.
13. Taxes and other payments
13.1
The Customer is responsible for collection, transfer and payment of any taxes, expenses, charges, duties, fees and other payments (the “Charges”), imposed with regard to the purchase, sale, export, import and other actions with the Products, or, in general, any Charges arising out of, or incidental to, the carrying on of its own business, whether or not these Charges relate to the Products.
14. Extraordinary circumstances
14.1
Kinami Limited is not liable for any loss or damage caused by delay in the performance or non-performance of any of its obligations under these Terms and Conditions due to extraordinary circumstances outside the reasonable control of Kinami Limited.
15. Confidentiality
15.1
The parties treats all information and documents, including prices and other delivery terms, received from the other party as well as other information relating to the business relationship between the parties as confidential and shall not use such information, or disclose it to any third party, except insofar as strictly necessary for the performance of the parties’ obligations towards each other or if expressly required by law. This obligation remains in force for 5 years following the latest purchase made by the Customer.
16.Governing law and venue
16.1
These Terms and Conditions, including disputes regarding their existence or validity, are governed by the laws of Malta. irrespective of any conflict of laws rules, which could otherwise result in the application of the laws of another jurisdiction to the dispute, and excluding any international private law rules such as the United Nations Convention on Contracts for the International Sale of Goods (CISG).
16.2
Any dispute arising out of, or in connection, with this these Terms and Conditions, including disputes will be resolved in the competent courts of Malta, ensuring a straightforward legal process for both parties.
16.3
Notwithstanding clause 16.2, regarding Customers from countries that do not participate in a mutual convention on the recognition of judgments with Malta and are signatories to the New York Arbitration Convention, any dispute arising from or related to these Terms and Conditions shall be resolved exclusively by arbitration administered by the Malta Arbitration Centre in accordance with its arbitration rules in effect at the time the proceedings are initiated. The Malta Arbitration Centre will appoint a sole arbitrator to act as the chairman of the arbitral tribunal. The arbitration proceedings shall take place in Valletta, Malta.”.
16.4
Notwithstanding the above, Kinami Limited will always be entitled to initiate legal proceedings at the home jurisdiction of the Customer.
Kinami Health prides itself on supplying genuine, high-quality medical injectables and supplies to hospitals, medical clinics, and licensed medical professionals around the world.
Links
Working Hours
Monday – Saturday
7 AM – 11 PM (CET)
Contact
UK: +44 7488 890499
Spain: +34 518 89 82 11
HongKong: +852 5808 0345
Email: [email protected]
Our Location
Room 4, Office 18, Block 19, Vicenti Building,
Triq Id-Dejqa, Valletta, VLT 1431, Malta
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