General Conditions of Purchase of DKSH GmbH ("GCP") (Version 2.0 as of August 11, 2020)

1. Applicability

1.1 The present General Conditions of Purchase (“GCP”) shall govern any order for products (“Products”) or services (“Services”) placed by DKSH GmbH (“DKSH”) (“Order”) and shall, together with the terms of such Order, constitute the entire agreement between DKSH and the Supplier, as defined here below, relating to such Order. “Supplier” means each person or entity that is an entrepreneur within the meaning of Section 14 German Civil Code (BGB) and that enters into an agreement with DKSH regarding the supply of Products or provision of Services by the Supplier to DKSH.

1.2 DKSH is entitled to update and/or amend these GCP and as of the moment of notifying the Supplier of such update or amendment or by sending the Supplier the updated or amended GCP, these revised GCP shall automatically apply, whichever occurs first.

1.3 Any other conditions, in particular the Supplier’s general terms and conditions of sale or any other document issued by the Supplier, are hereby expressly rejected and hence do not apply unless explicitly accepted by DKSH in writing. The acceptance of the delivery of Products or the provision of Services, without express rejection of the conditions conflicting with these GCP, shall in no way constitute DKSH’s recognition of or consent to such conflicting conditions.

2. Order and offer

2.1 Every Order issued by DKSH shall constitute an offer to conclude a contract and shall be accepted and confirmed by the Supplier in writing within eight (8) days in the form of a binding declaration stating object and quantity to be supplied, place of delivery and price. Any subsequent oral agreements shall be confirmed in writing. In the absence of the Supplier’s written confirmation within the aforementioned time period, it shall be assumed that the Order has not been accepted. Any confirmation received by DKSH at a later date shall be treated as a new offer requiring DKSH’s express acceptance.

2.2 The delivery of any Products or provision of Services ordered by DKSH or any other conduct of Supplier which is reasonably deemed acceptance of a contract pertaining to the subject matter hereof shall, if made within the aforementioned period, constitute an implicit acceptance by the Supplier of DKSH’s Order and these GCP.

3. Packaging, classification and labelling

3.1 The Supplier warrants that all Products are classified, packed and labelled (i) in accordance with applicable laws and regulations, in particular but not limited to any laws and regulations on dangerous substances and (ii) in accordance with any instructions from DKSH as set forth in the Order. However, should such instructions not be in compliance with applicable laws and regulations, the latter shall prevail over such instructions and the Supplier shall immediately notify DKSH about the non-compliance of instructions with applicable laws and regulations.

3.2 Furthermore, the Supplier warrants that the Products are packed in a manner which ensures safe and undamaged delivery.

3.3 DKSH reserves the right to return the packing material or to dispose of it at the Supplier’s cost.

4. Supply and delivery

4.1 The Supplier shall deliver the Products to the address stated in the Order by exercising the highest standards of diligence and skill. Deliveries shall be made according to the Incoterms (and/or other delivery terms, if any) as specified in the Order. If no Incoterms or other delivery terms are specified in the Order, the Supplier shall deliver the Products by the way of transportation most favorable to DKSH in terms of cost, duration and efficiency.

4.2 The Supplier must state the following data in the transport documents: delivery address, Order number and date, place of delivery and, if applicable, name of recipient, material designation and number communicated by DKSH. 

4.3 All individual packages (weighing 1 t or more) shall bear a clearly visible, indelible statement of unit weight.

4.4 Quantities of delivered Products shall exactly correspond to the quantities stated in the Order. Should the delivered quantity of Products be below or above the quantity stated in the Order (the “Agreed Quantity”), DKSH shall be entitled to reject the corresponding delivery. Any such rejected Products shall be returned to the Supplier at the Supplier’s risk and expense. If DKSH does not reject the Products and instead accepts the delivery of Products at a quantity deviating from the Agreed Quantity, the price for the Products shall be adjusted on a pro-rata basis.

4.5 The Supplier shall be entitled to make partial deliveries of Products or provide partial Services only upon DKSH’s written approval.

5. Essential data relating to deliveries

In due time prior to delivery, the Supplier shall provide DKSH with (copies of) all applicable licenses, if any, documents, information, specifications and instructions necessary for safe and proper transport, use, treatment, process and storage of the Products and with all certificates of analysis/conformity as customarily supplied. In particular, the Supplier shall provide DKSH with documentation on the composition and stability of the Products, safety data sheets, processing instructions, work safety precautions etc., including any modifications or updates of the foregoing documents.

6. Delivery date and delay

6.1 The agreed delivery date shall be binding. The Supplier shall promptly inform DKSH in writing of any actual or threatened delay of the agreed delivery date.

6.2 The Supplier shall indemnify DKSH for all damages and losses incurred due to the delay in delivery, except in cases where the Supplier can show that the delay was not caused by its default. Acceptance by DKSH of a late delivery shall not be deemed a waiver of its right to claim damages for late delivery. DKSH reserves its right to claim compensation for further damages or take other legal actions, as provided by the applicable law.

7. Prices

Unless otherwise agreed between DKSH and the Supplier, all prices shall be fixed and firm (indicated in Euro) and shall include all costs incurred by the Supplier, all applicable taxes, customs and any other duties charges that may apply to the respective Products/Services.

8. Invoicing and payment terms

8.1 Unless otherwise agreed, all invoices shall be paid by DKSH net within sixty (60) days of receipt of the invoice to the account indicated in the Order. All invoices shall state the Order number, the material identification number and specify statutory taxes separately.

8.2 Settlement of an invoice by DKSH shall in no way imply a waiver of any warranty rights relating to the Products delivered or Services performed by the Supplier.

9. Notification of defects

Notification of defects relating to a delivery shall be deemed to have been filed in due time if DKSH gives the Supplier notice within two (2) weeks of delivery date in case of apparent defects, or within two (2) weeks of date of discovery in case of hidden or latent defects.

10. Warranty

10.1 The Supplier warrants that the Products and Services (i) meet the agreed specifications, (ii) are suitable for the intended purpose and (iii) are and will remain free from any other defects in material, design, manufacture, workmanship and title for a warranty period corresponding to the shelf life as indicated on the respective Product or, if no shelf life is applicable, for a warranty period of 2 (two) years from delivery/provision of the Products/Services when used in accordance with the Supplier's instructions and for the purpose for which they are made (the “Warranty Period”).

10.2 The Warranty Period shall be extended by any period(s) during which the Products could not be used by DKSH or its customer due to the Supplier’s breach of any of the warranties set forth hereunder.

10.3 During the Warranty Period, at DKSH’s option and at the Supplier’s expense (including but not limited to all cost of transportation, customs and other import duties), the Supplier shall rectify any defects of the Products/Services, replace the Products/reperform the Services, accept the return of the Products and/or refund the amount paid by DKSH (in excess) for the defective or nonconforming Products and Services.

10.4 In urgent cases or if the Supplier is in default with performance of its obligations, DSKH shall be entitled, at the Supplier’s expense, to either remedy the defect(s) itself or to have it/them remedied by a third party.

10.5 The foregoing remedies are in addition to any other rights DKSH may have according to the applicable law.

11. Product liability

Product liability shall be borne by the Supplier. The Supplier shall indemnify DKSH for all claims, losses and liabilities for damages and expenses (including court costs and attorneys' fees reasonably incurred) arising out of or in connection with a third party’s death, bodily injury and/or property damage resulting from a defect in the Product(s) and hold DKSH harmless, provided that (a) the claim brought forward against DKSH by the third party is based on the applicable product liability (or similar) law and (b) DKSH is not responsible for the defect in the Product(s) which caused such damage.

12. Product recall

Any Products withdrawn by the Supplier from DKSH’s premises (e.g. product recall initiated by the Supplier or by government), as well as costs and expenses related to such withdrawal or recall shall be for Supplier’s own account at cost plus fifteen percent (15%) handling fee plus applicable taxes, if any. DKSH is entitled to withdraw, subject to the Supplier’s prior written approval not to be unreasonably withheld, any of the Products from the market in the contractual territory, in case new evidence shows unforeseen effects of the Products may lead to inacceptable risks for DKSH or third parties.

13. Intellectual property rights

The Supplier warrants that neither the trademarks or any other intellectual property rights related to the Services and Products nor the Products/Services or their importation, storage, promotion, sale and distribution by DKSH, do infringe any intellectual property rights (including but not limited to trademarks, patents, designs and copyrights) of any third parties, and the Supplier hereby undertakes to indemnify and hold harmless DKSH for and against any claims, liabilities, damages, costs and expenses (including all court fees and reasonable attorney charges) which may arise from such infringement or alleged infringement.

14. Insurance

The Supplier shall, at its expense, purchase and maintain in force, for a period of two years after the last delivery of Products/Services is made under these GCP, an adequate insurance covering its liabilities under these GCP and any Order in connection herewith, in particular but not limited to a product liability insurance, with coverage customary to the respective industry but not less than EUR 10,000,000 per damage event. Upon DKSH’s request, the Supplier shall furnish DKSH proof of such insurance.

15. Liability

15.1 In case of damages arising from DKSH’s willful intent or gross negligence, DKSH shall be liable to the Supplier without limitation in accordance with the statutory provisions.

15.2. In case of simple negligence, DKSH shall only be liable for

a) damages resulting from injury to life, body or health; and

b) damages resulting from breach of fundamental contractual obligations (i.e. contractual obligations which enable the fulfillment of the performance of the contract in the first place, and contractual obligations that the contracting party can and will reasonably and regularly rely on); in case of this 15.2 b), DKSH’s liability shall be limited to the foreseeable, typically occurring damage.

This limitation of liability, as set forth in this Section 15.2, shall also apply to any of DKSH’s representatives, employees and vicarious agents for which DKSH is liable according to the statutory provisions.

15.3 The limitation of liability, as set forth in Section 15.2, shall not apply if and to the extent

a) DKSH has fraudulently concealed a defect or assumed a guarantee for the condition of the delivered Products or performed Services; or

b) DKSH bears the mandatory liability under the Product Liability Act (ProdHaftG) or any other law providing for mandatory liability.

16. Waste disposal

Unless otherwise agreed, the Supplier shall bear the responsibility for recycling or disposal of any items defined as waste within the meaning of the Waste Disposal Act (KrW-/AbfG) at its expense and in accordance with the provisions of the regulations on waste disposal. Title, risks and responsibility under the Waste Disposal Act shall pass to the Supplier at the time of the Product’s first classification as waste. Should the Supplier fail to fulfil its obligations to recycle or dispose of waste, it shall either indemnify DKSH against any expenses incurred in connection therewith.

17. Confidentiality

17.1 The Supplier shall treat all Confidential Information (as defined below) strictly confidential and shall not disclose Confidential Information, or cause or allow it to be disclosed, to any third party or use the Confidential Information for any purpose other than reasonably necessary in order to fulfill its obligations under the Agreement or as expressly set forth in the Agreement. Supplier shall disclose Confidential Information only to those of its officers and employees who need to know Confidential Information in connection with the fulfillment of the Order and who are bound by confidentiality obligations at least as restrictive as those contained in these GCP. In any event, Supplier remains liable for any breach by its officers or employees of any confidentiality obligations hereunder.

17.2 “Confidential Information” means any information contained in any Order and any information provided by or on behalf of DKSH to Supplier (in particular but not limited to information regarding pricing, financial information, market information, methods of distribution, customer data, data of employees, manufacturing and technical information and know-how). Notwithstanding the foregoing, Confidential Information does not include information that (i) is rightfully known to Supplier at the time of disclosure as demonstrated by Supplier’s written or electronic records, (ii) is or becomes part of the public domain through no wrongful act of Supplier, (iii) has been rightfully received by Supplier from a third party authorized to make the disclosure without restriction, (iv) has been approved in writing by DKSH for release or (v) is independently developed without benefit of the Confidential Information.

18. No Assignment or sub-contactors

18.1 The Supplier shall not be entitled to make assignments not covered by the provisions of Section 354a of the German Commercial Code (HGB) without DKSH’s prior written consent.

18.2 The employment of subcontractors shall require DKSH’s prior written consent. If DKSH has provided its consent to the employment of subcontractors, the Supplier shall ensure that the subcontractors always refer to the Supplier as their customer and the relevant Order data in all correspondence with DKSH and in the freight documents.

19. Compliance with legal regulations

19.1 The Supplier shall comply with all applicable National and Foreign laws and statutory provisions.

19.2 In particular, the Supplier warrants that it will strictly comply with all applicable anti-corruption and anti-bribery laws and the Supplier shall refrain from taking any action that would cause DKSH to be in violation of any applicable anti-corruption and anti-bribery laws.

19.3 The Supplier also warrants that it will strictly comply with all applicable international and national export control laws and regulations. The Supplier agrees to inform DKSH in writing whether or not the supplied Product(s) is (are) US controlled and/or controlled under the export control laws of its own country, and if so, the Supplier will inform DKSH about the extent of the respective restrictions (including but not limited to export control legal jurisdiction, export control classification numbers and/or export control licenses, as applicable). The Supplier shall obtain all international and national export licenses or similar permits required under all applicable export control laws and regulations and shall provide DKSH with all information required to enable DKSH to comply with such laws and regulations.

19.4 Unless otherwise agreed, the Supplier shall be responsible for compliance with legal and official regulations relating to import, transport, storage and use of the products.

19.5 The Supplier agrees to indemnify and hold DKSH harmless from any claims, liabilities, penalties and associated costs and expenses (including attorney’s fees), which DKSH may incur due to the Supplier’s non-compliance with applicable laws, rules and regulations.

20. Requirement of written form

20.1 No amendments or additions to these GCP, including this Section 20, or a contract hereunder shall be valid unless made in writing.

20.2 Any statements and notifications issued by the Supplier after conclusion of a contract shall not be valid unless made in writing.

21. Force majeure

Non-performance of either party shall be excused to the extent that performance is rendered impossible or prevented or hindered or is delayed by an extraordinary and severe event of force majeure or change of circumstance beyond the control and not caused by the non-performing party (including but not limited to natural disasters, war, strike, traffic or business interruptions, orders, laws or regulations of any governmental body, fire or explosion, pandemics or endemics) provided, however, that the non-performing party (i) immediately notifies the other party of the occurrence of such an event and (ii) resumes performance of its obligations hereunder without delay when such causes have been removed. For the avoidance of doubt, the Supplier’s economic hardship, changes in market conditions and mechanical failure of the Supplier’s facility are not considered events of force majeure.

22. Severability

Should any individual provision(s) of these GCP be deemed wholly or partially invalid, this shall not affect the validity of the remaining conditions. Any invalid provision shall be replaced by a provision whose economic purpose comes as close as possible to that of the invalid provision.

23. Governing law and venue

23.1 These GCP, any contract hereunder and the business relationship between DKSH and the Supplier shall be exclusively governed by German law with the exclusion of the laws on conflict of laws and of the United Nations Convention on Contracts and the International Sale of Goods (CISG) of April 11, 1980.

23.2 If the Supplier is merchant, any disputes arising out of or in connection with the contract(s), these GCP or the business relationship between the Supplier and DKSH shall be resolved exclusively before the courts in Hamburg. Notwithstanding the foregoing, DKSH shall also be entitled to start legal proceedings at the Supplier’s place of business.