General Terms & Conditions of Sale of Moderna Switzerland GmbH

(“Terms and Conditions”)

Version 1.0
15th February 2024

1. Definitions

Moderna: means Moderna Switzerland GmbH, having its registered offices at Peter Merian-Weg 10, 4052 Basel, Switzerland.

Purchaser: means the party who purchases and receives delivery of the Products from Moderna to possibly further supply to Third Party Recipient.

Agreement: means the agreement entered into between Moderna and Purchaser, any amendment thereof or addition thereto, any order relating to the sale and delivery of the Products, under these Terms and Conditions.

Products: all products that are the subject of an Agreement and to be delivered by Moderna to the Purchaser.

Third Party Recipient: recipient, acting in the course of a business or profession or as a private person authorized to purchase and sell, dispense and/or administer Products to patients, receiving the Products from Purchaser.

2. Scope of Application

2.1 These Terms and Conditions shall cover and form a part of all offers, proposals, agreements, and other legal acts, either made orally, in writing, electronic or in any other form, concerning the sale and delivery by Moderna of the Products to the Purchaser.

2.2 Deviations from the Terms and Conditions shall only apply if and to the extent that they have been agreed upon in writing between Moderna and the Purchaser.

2.3 Moderna does not accept the Purchaser's terms and conditions. These terms will not apply, even if they are mentioned in an order.

3. Conclusion of Agreement

3.1 All offers by Moderna shall be without any obligation on the part of Moderna unless otherwise stated in writing.

3.2 By placing an order, Purchaser bindingly declares that it wishes to purchase the Products specified in the order. Information on minimum order quantities and delivery surcharges can be found in the order forms.

3.3 Upon request of Moderna, the Purchaser shall provide proof that it has the required licenses, permits or authorizations or that it otherwise has the right to obtain the Products ordered. The Purchaser shall notify Moderna without being requested to do so and without undue delay if such a right no longer exists.

4. Supply to Third Parties

4.1 Any contract on the sales of Products from Purchaser to Third Party Recipient is concluded only if the following requirements have been met:

4.1.1 Purchaser has ensured that Third Party Recipient meets the requirements prescribed by applicable statutory law or any other law or regulation to purchase and sell Products to patients and/or to store for the purpose of dispensing and/or administering;

4.1.2 Products may only be handed over and resold unchanged and in their original packaging.

5. Prices and Payment Modalities

5.1 All prices and fees mentioned by Moderna are in Swiss Francs (CHF), unless explicitly stated otherwise.

5.2 The unit price for the Products are set at the time of the order in accordance with the current Moderna’s price list and the applicable statutory value added taxes and stated on the invoice. Moderna is at any time authorized to adjust its prices.

5.3 The total invoice amount is due without deduction within thirty (30) calendar days from the invoice date. Any agreed discounts or other benefits will be shown openly on the invoice.

5.4 The Purchaser shall not be entitled to any postponement, set-off or reduction unless awarded to the Purchaser by mandatory law.

5.5 Moderna is entitled to require payment in advance by Purchaser, and to postpone delivery of the Products until such payment in advance has been received.

5.6 If Purchaser fails to pay an invoice within the term of payment, Purchaser is in default without a warning or notice of default being required. From the time at which Purchaser shall be in default until the day of payment in full, interest shall accrue on the outstanding amount at a default interest of 5%. Moderna reserves the right to assert higher default damage in the specific case.

5.7 If Purchaser continues to be in default in its obligation to pay the outstanding invoice with accrued interest, Moderna can place the matter in the hands of a lawyer or a debt-collection agency. All collection costs incurred by Moderna in respect of such collection, both in law (judicial costs) as well as out of law (extrajudicial costs) shall be for the Purchaser’s sole account.

6. Delivery, Transfer of Risk

6.1 Deliveries shall be made DAP (Incoterms 2020) at the place designated by Purchaser in the order confirmation.

6.2 For Products requiring refrigeration, the special delivery periods and acceptance obligations of the logistics provider apply.

6.3 Orders placed by 13.30 on a working day are generally handed over for delivery on the next working day. However, information on the delivery period is non-binding unless a binding delivery date has been expressly agreed to.

6.4 If a delivery date is not met, Purchaser shall grant Moderna a five-business day grace period in writing. In the event of longer delivery delays Moderna shall inform Purchaser. In such a case, the Purchaser may cancel the order. Claims for compensation due to delivery delays and delivery bottlenecks are excluded.

6.5 If Purchaser fails to accept the Product, it will be in default without notice and it is obligated to compensate Moderna for all resulting damages.

7. No Right to Return Product

Moderna cannot accept any return of Product unless otherwise agreed in writing. Products with defects at delivery and if reported in a timely manner according to Article 8 below will be replaced by Moderna.

8. Inspection and Obligation to Give Notice of Defect

8.1 The Purchaser must inspect the Products upon delivery and report any visible defects in writing to Moderna within 3 working days. Purchaser must notify Moderna in writing of any hidden defects within three working days of discovering them. If a timely complaint is not made, the delivered Products are considered approved.

8.2 The Purchaser is not free to return the Products until Moderna has agreed to do so. Moderna will only bear the reasonable costs of return if a complaint is made in a timely and correct manner.

8.3 If the supplementary performance of Products has failed or if Moderna has refused it, Purchaser may reduce the purchase price or withdraw from the respective Agreement.

9. Liability of Moderna

Moderna is only liable for damages caused to the Purchaser by willful or grossly negligent behavior.

10. Confidentiality

10.1 By ordering Products, Purchaser agrees to keep secret information and documents marked as confidential or made by Moderna subject to other steps to keep it confidential (“Confidential Information”), and not to disclose Moderna’s Confidential Information to any third party without the prior written consent of Moderna (except as required to comply with law or court order), also not after termination of the Agreement.

10.2 By ordering Products, Purchaser agrees to return any Moderna Confidential Information promptly upon written request and to retain no copies or excerpts of such Confidential Information.

11. Anti-Corruption

11.1 Purchaser and Moderna will comply with all relevant anti-corruption and bribery laws and will not make any improper payments to influence actions related to the Agreement.

11.2 In fulfilling their duties, neither Moderna nor Purchaser will improperly influence healthcare professionals regarding prescriptions or administration of medicinal products.

12. Data Protection

Moderna and Purchaser shall comply with all applicable data privacy laws. Each party will process the required personal data of the business contacts of the other party for purposes of ordering and order processing, invoicing, delivery, safety and quality, marketing and managing of the relationship. Each party will ensure that its employees whose data is processed under those Terms and Conditions is aware of the processing and their corresponding rights. The parties will not transfer any other personal data under these Terms and Conditions.

13. Other Provisions

13.1 Purchaser shall ensure compliance with all applicable laws and codes of conduct related to this business relationship. Purchaser shall also comply with all governmental and regulatory controls, including applicable trade sanctions and export control laws and regulations.

13.2 Purchaser is not authorized to assign its contractual rights and/or obligations to third parties without Moderna’s express written consent.

13.3 The parties require written approval of the other party, before implicitly or explicitly using the other party’s name and/or company logo in publications (including press releases) and advertisements.

13.4 During the business relationship and for three (3) years after termination of this business relationship, the documents related to the fulfilment of this business relationship shall be made mutually accessible for inspection and audits.

13.5 These Terms and Conditions are subject to Swiss law, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG) 1980. The exclusive place of jurisdiction is the registered office of Moderna Switzerland GmbH. Moderna also reserves the right to sue the Purchaser at any other competent court, in particular at the Purchaser's place of business or residence.