Warehouse Terms and Conditions of Service
THESE WAREHOUSING TERMS AND CONDITIONS OF SERVICE (the “Warehousing Terms”) contain the terms and conditions under which Rentschler Biopharma SE. with its principal business office at Erwin-Rentschler-Str. 21, 88471 Laupheim, Germany (“Rentschler”), will provide certain warehousing and storage services (“Storage Services”) to Customer (as defined below). Customer agrees to the Warehousing Terms in effect at the time of such Services, if the Product needs to be picked up and the Customer fails to do so following Rentschler’s dispatch notice.
Rentschler and Customer are referred to herein collectively as the “Parties” and individually as a “Party”.
1. Definitions. The following capitalized terms have the following meaning:
“Customer” means the company who (i) entered into a master development services agreement containing development work and/or supply of Products for clinical demands (the “MSA”); and/or (ii) entered into a commercial supply agreement containing the commercial supply of Products (the “CSA”) (collectively referred to as the “Contract”).
"Good Manufacturing Practices" or "cGMP" means Good Manufacturing Practices as regulated by the German Pharmaceuticals Act (“Arzneimittelgesetz”), the German Regulation for Manufacturing of Medicinal Products and Active Ingredients (“Arzneimittel- und Wirkstoffherstellungsverordnung”), the EU GMP Guidelines Volume 4 GMP Parts I-III including applicable Annexes, applicable International Council for Harmonization (ICH) Guidelines, and by Title 21, Parts 210, 211, 314.70 and 600 through 680 of the Code of Federal Regulations of the United States of America, as applicable.
“Product(s)” means each item developed, manufactured and/or supplied by Rentschler to Customer for clinical trial use and/or commercial use under cGMP conditions for human use under the Contract.
“Storage Fees” shall have the meaning pursuant to Section 5.
“Warehouse” means Rentschler’s storage or logistics facility as set forth in the respective Work Order.
"Work Order” shall mean a written statement of the development work, manufacturing and delivery of the Product to be performed by Rentschler under the MSA, which has been executed by both Parties.
2. Storage.
a) Rentschler agrees to store the Product at Rentschler’s Warehouse following the applicable cGMP regulations and in accordance with the common standards for the storage of pharmaceutical goods.
b) Rentschler shall notify Customer immediately in the case that any change in the storage will occur which may affect the Product quality.
3. Termination of Storage. Both Parties have the right to terminate storage by giving thirty (30) calendar days advance written notice to the respective other Party. Customer shall be responsible for payment of all charges attributable to said Products within the stated period and for removing the Products from the Warehouse upon payment of all charges. If Customer is not removing the Product within the before mentioned thirty (30) calendar days period, Rentschler will invoice a non-removal fee of three hundred percent (300%) of the original Storage Fee per week of non-removal in addition to the normal Storage Fee. Six (6) months after the respective termination Rentschler shall dispose the Product at Customer's expense in case of ongoing non-removal by Customer.
4. Ownership of Products; Delivery.
a) The Product will remain sole and exclusive property of Customer.
b) Upon request by Customer, Rentschler will dispatch the Product ready to be picked-up to a carrier designated by Customer in accordance with the terms and conditions as agreed between the Parties pursuant under the Contract.
5. Storage Fees.
a) Customer shall pay Rentschler a Storage Fee as agreed in the respective Work Order.
b) Storage Fees are due and payable monthly, in advance. The Storage Fee shall be made in Euro within thirty (30) calendar days after having received the invoice for the Storage Services unless otherwise agreed by the Parties in the Contract and/ or a Work Order via bank wire transfer to a bank account named by Rentschler. All invoices not paid within thirty (30) calendar days will be subject to an interest rate equal to nine percentage points (9%) above the basic interest rate (Basiszins) of the European Central Bank p.a.
c) Rentschler may adjust the Storage Fee annually on each 1st The increase shall be five percent (5%). If Rentschler chooses not to adjust the Storage Fee for one or more years, Rentschler may adjust the price on the respective next 1st April as if Rentschler had made use of its right to adjust the Storage Fee each year during the term of this storage agreement.
6. Liability and Limitation; Warranties.
a) Company shall not be liable for any loss or destruction of or damage to the Products, however caused, unless such loss, damage or destruction resulted from Rentschler’s failure to exercise such care in regard to the Products as Rentschler would storage its own products (Diligentia quam in suis) under like circumstances. Rentschler is not liable for damages which could not have been avoided by the exercise of such care. Rentschler and Customer agree that Rentschler’s duty of care referred to herein shall not extend to providing a sprinkler system at the Warehouse.
b) In no event shall Rentschler be liable for any loss or damage caused by:
(i) acts of God; public authorities acting with actual or apparent authority; strikes; labor disputes; weather; mechanical or equipment failures; cyberattacks; civil commotions; hazards incident to a state of war; acts of terrorism; acts or omissions of customs or quarantine officials; acts of carriers related to security; the nature of the freight or any defects thereof; inherent vice of the goods; perishable qualities of the merchandise; fires; frost or change of weather; sprinkler leakage; floods; wind; storm; moths; public enemies; or other causes beyond its control;
(ii) fragile articles injured or broken, unless packed by Rentschler’s employees and unpacked by them at the time of delivery;
(iii) pilferage or theft; and
(iv) concealed damage, or for losses incurred due to the concealed damage of the Products.
c) No Consequential Damages. IN NO EVENT, WHETHER AS A RESULT OF BREACH OF RENSCHLER’S DUTIES, NEGLIGENCE LIABILITY WITHOUT FAULT OR ANY OTHER LEGAL THEORY OR BASIS, SHALL RENTSCHLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, STATUTORY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF MARKET, LOSS OF INCOME, DAMAGES ARISING FROM LOSS, ATTORNEYS FEES OR PUNITIVE DAMAGES, WRONG DELIVERY, OR DAMAGE TO PROPERTY, LOSS OF USE OF PRODUCTS, COST OF SUBSITUTED PRODUCTS, DELAYED DELIVERY OR FAILURE TO ATTEMPT DELIVERY, WHETHER OR NOT RENTSCHLER HAD KNOWLEDGE THAT SUCH DAMAGES OR LOSSES MIGHT OCCUR.
d) In the event of loss or destruction of or damage to Products for which Rentschler is legally liable, Rentschler’s total liability shall be limited to one hundred percent (100%) of the yearly Storage Fee paid by Customer to Rentschler.
e) Rentschler will maintain an insurance for the Warehouse in order to cover the elemental risk for the storage of the Product. Therefore, Customer shall inform Rentschler in writing timely ahead of the first Product storage about the insurance value of the Product. If Customer fails to inform Rentschler about the insurance value of the Product, Rentschler has no obligation to insure the Product against elemental risk. Upon request by Customer, Rentschler will provide evidence upon such insurance.
f) Any lawsuit or other claim against Rentschler with respect to the Products shall be forever waived unless commenced within one (1) year after Customer knew or should have known by the exercise of reasonable care, about such loss or damage.
g) RENTSCHLER DOES NOT MAKE OR HAS MADE ANY OTHER REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT (WHETHER EXPRESS OR IMPLIED).
7. Notices. All written notices herein may be transmitted by any commercially reasonable means of communication providing delivery receipt to the sender and shall be directed to Rentschler and Customer at the address on the front hereof and to Customer at its last known address, unless otherwise instructed by either Party in writing.
8. Miscellaneous.
a) Entire Agreement. This Warehousing Terms hereunder constitutes the entire and exclusive understanding between the Parties hereto regarding the subject matter hereof and supersedes all prior agreements and understandings relating to the subject matter hereof. In case of inconsistencies between this Warehousing Terms and the Contract and/or a Work Order referring to it, the Contract and the respective Work Order shall prevail.
b) Amendments. This Warehousing Terms may not be modified except for a written agreement between Customer and Rentschler. If any section or portion of these Warehousing Terms is held by any court to be illegal or unenforceable it shall not affect the legality or enforceability of the remaining provisions or terms and conditions herein.
c) Waiver and Enforceability. Rentschler’s failure to enforce any right or provision of these Warehousing Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Rentschler. Except as expressly set forth in these Warehousing Terms, the exercise by either Party of any of its remedies under these Warehousing Terms will be without prejudice to its other remedies under these Warehousing Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Warehousing Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Warehousing Terms will remain in full force and effect.
d) Assignment. These Warehousing Terms are neither assignable nor transferrable by Customer, by operation of law or otherwise, without Rentschler’s prior written consent. Any attempt by Customer to assign or transfer these Warehousing Terms, without such consent, will be null and of no effect. Rentschler may assign or transfer these Warehousing Terms, at its sole discretion, without restriction. Subject to the foregoing, these Warehousing Terms will bind and inure to the benefit of the Parties, their successors and permitted assigns.
e) Independent Contractor Agreement. No agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship between Rentschler and Customer or any other person or entity is intended or created by these Warehousing Terms.
f) Governing Law and Jurisdiction. These Warehousing Terms shall be governed by the laws of Germany. To the extent legally permissible, all disputes, claims, disagreements and controversies arising out of or relating to this storage agreement, or the subject matter of this storage agreement, including any questions regarding its existence, validity, breach or termination, shall be subject to the exclusive jurisdiction of the courts of Ulm (Germany). Rentschler may, however, at its sole discretion, chose the competent court at the registered seat of Customer to have exclusive jurisdiction.
Version: November 2022