1. Applicability
The purchase order(s), confirmed by the Supplier (“Supplier” means each person or entity that enters into an agreement with DKSH about the supply of goods from Supplier to DKSH) as set forth in clause 2 hereinafter, referring to DKSH Marketing Services Spain, S.A.U.’s (“DKSH”) GCP (the “Purchase Order”), together with the current version of these GCP (version as available at www.dksh.com) on the date of confirmation by Supplier), constitute(s) the entire agreement (the “Agreement”) between the parties in relation to the purchase of products governed by the Agreement (the “Products”). DKSH is entitled to update and/or amend these GCP and by and as of the moment of notifying Supplier of such update or amendment or by sending Supplier the updated or amended GCP, these revised GCP shall apply.
Any other conditions, in particular Supplier’s general terms and conditions of sale or any other document issued by Supplier are hereby expressly rejected and hence do not apply unless explicitly accepted by DKSH in writing. Acceptance of a delivery of Products without express rejection of conditions conflicting with these GCP shall in no way constitute recognition of or consent to such conflicting conditions.
2. Order and offer
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 14 days of issue date in the form of a binding declaration stating object and quantity to be supplied, place of delivery and price. In the absence of the Supplier’s written confirmation within the aforementioned 14-day 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. The delivery of any products 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 14-day period, constitute an implicit acceptance by Supplier of DKSH’s order and these GCP. Any terms and conditions contained in Supplier’s confirmation, invoice or any other document that are in contradiction with or add to the terms of these GCP (e.g. different time and/or place of delivery, different quantity, different specifications) are hereby rejected.
3. Delivery, packaging, classification and labelling
The Supplier shall deliver the Products to the address stated in the Purchase 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 Purchase Order.
The Supplier warrants that all Products are classified, packed and labelled 1) in accordance with applicable laws and regulations, in particular but not limited to any laws and regulations on dangerous substances and to the EC/EU guidelines on dangerous substances/preparations (to the extent applicable) and 2) in accordance with any instructions from DKSH as set forth in the Purchase Order. However, should such instructions not be in compliance with applicable laws and regulations, the latter shall prevail over such instructions and Supplier shall immediately notify DKSH about the non-compliance of instructions with applicable law and regulations.
Furthermore, the Supplier warrants that the Products are packed in a manner which ensures safe and undamaged delivery. Quantities of delivered Products shall exactly correspond to the quantities stated in the Purchase Order. Should the delivered quantity of Products be below or above the quantity stated in the Purchase Order (the “Agreed Quantity”), DKSH shall be entitled to reject the corresponding delivery. Any such rejected Products shall be returned to Supplier at 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.
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.
The Supplier shall only be entitled to make partial deliveries upon DKSH’s written approval.
4. 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.
5. Delivery date and delays
The Supplier shall promptly notify DKSH in writing if it anticipates that it will not be able to meet the date stated in the Purchase Order (“Delivery Date”).
Acceptance by DKSH of a late delivery shall not be deemed a waiver of its right to claim damages for late delivery.
The delivery date is a material contractual obligation and failure to meet the delivery date specified in the Purchase Order shall constitute a material breach of the Purchase Order. The Supplier shall inform DKSH as soon as it expects a delay in the delivery date of the Products or Services. If only part of the Products or Services can be delivered on the delivery date, Supplier shall deliver the available Products or Services, unless otherwise agreed by DKSH. Partial deliveries shall be deemed to be late deliveries and may only be deemed to be completed when all Products or Services have been delivered.
Notwithstanding the foregoing, if the Supplier fails to deliver in accordance with the Purchase Order or if the Supplier notifies DKSH that it anticipates that the delivery date will not be met, DKSH reserves the right to cancel the Purchase Order or any part thereof without cost or liability and reserves all rights to claim costs and damages incurred, including but not limited to the right to purchase substitute Products or Services from another supplier and to hold the Supplier liable for any costs it may incur as a result.
6. Price, invoicing and payment
Unless expressly stated to the contrary in the Purchase Order, prices are (i) fixed and firm (ii) inclusive of any value added tax.
Unless otherwise agreed, all invoices shall be paid by DKSH net within 60 days of receipt of the invoice to the account in the Purchase Order. All invoices shall state the order number and the material identification number as well as specify statutory taxes separately.
Payment of an invoice by DKSH does not in any way constitute acceptance.
DKSH shall be entitled to deduct from the price any other amounts due to it by the Supplier.
7. Inspection and notification of defects
DKSH has the right to review, inspect and test the Products prior to delivery, prior to arrival and/or upon arrival (before acceptance) of the Products at the agreed destination. However, any such review, inspection, or testing by DKSH does not release Supplier from its obligations and warranties; neither do acceptance, use or payment release Supplier from its obligations and warranties. Notification of defects, if any, may be made during the whole warranty period set forth hereinafter and for a period of 30 days thereafter.
8. Warranty liability for defects and time limitation
For a warranty period according to the shelf life indicated on the respective Product or, if the respective Product does not have a shelf life, for a warranty period of 2 (two) years after delivery (the “Warranty Period”), Supplier warrants the proper functioning of the Products and warrants that the Products are in conformity with the agreed specifications and requirements, are in conformity with newest technical standards and with laws and regulation applicable in the country of destination, are unused, of good materials and workmanship (or higher quality, if agreed), are free from any defects in material, design, manufacture and workmanship and from any and all liens and encumbrances, pledge or right of retention and are suitable for the intended purpose (the “Warranties”). 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 Supplier’s breach of any of the Warranties.
The Supplier is responsible for any defects in the Products occurring during the Warranty Period and their failure to fully comply with the Warranties furnished by Supplier and as set forth in these GCP (“Non-Conformities”). At DKSH’s option, Supplier shall rectify any defects and Non-Conformities at Supplier’s expense, replace the Products or refund the amount paid for the defective or nonconforming Products. Additionally, DSKH shall also be entitled to either remedy the defect(s) itself or to have it/them remedied by a third party, in both such cases at the Supplier’s expense. DKSH’s failure to notify Supplier of any breach of warranty will not discharge Supplier from its liability hereunder. The foregoing remedies are in addition to any other rights DKSH may have according to applicable law.
Notwithstanding its responsibilities under the Purchase Order and without limitation in this respect, the Supplier shall at its own expense take out and maintain in force at all times during the term of the Purchase Order (including the guarantee period), with companies of recognised financial strength, appropriate insurance policies for an amount sufficient to cover the risks associated with the execution of the Purchase Order.
9. 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 in relation to a defect in the Product(s) (including court costs and attorneys' fees reasonably incurred) 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.
10. 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 leading to inacceptable risks for DKSH or third parties.
11. Insurance
The Supplier shall, at its expense, purchase and maintain with a reputable insurance company an adequate insurance policy covering its liabilities under the Agreement, in particular but not limited to a product liability insurance policy, with coverage customary to the respective industry but in no event less than 10,000,000 € per damage event, for a period of two years after the last delivery of Products is made under these GCP. Upon DKSH’s request, the Supplier shall submit to DKSH a confirmation of the foregoing insurance coverage from its insurance company.
12. Intellectual property rights
The Supplier warrants that neither the trademarks or any other intellectual property rights related to the Products nor the Products or their importation, storage, promotion, sale and distribution by DKSH, do infringe any intellectual property rights (including but not limited to trademarks, patents and copyrights) of any third parties, and the Supplier hereby undertakes to indemnify and hold harmless DKSH for and against any claims, suits, charges, penalties, liabilities, damages, compensation, costs and expenses (including all court fees and reasonable attorney charges) which may arise from such infringement or alleged infringement.
13. Restriction of liability
DKSH’s liability or the liability of any of its affiliates, officers and employees for any indirect or consequential damages or any loss of profits or business, whether based on contract, tort or any other legal theory, is excluded to the fullest extent permitted by applicable law.
14. Confidentiality
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 the Confidential Information only to its officers and employees who need to know the Confidential Information in connection with the fulfillment of the Purchase 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.
“Confidential Information” means any information contained in the Agreement 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.
15. Assignment and sub-contactors
Neither the Agreement nor any obligations or rights thereunder may be assigned or subcontracted by Supplier, in whole or in part, without DKSH’s prior written consent. Should Supplier exceptionally receive approval from DKSH to assign or subcontract any of its obligations under the Agreement or any rights thereunder, Supplier shall not be relieved of any liability of performance to DKSH. DKSH may assign the Agreement in whole or in part in its sole discretion.
16. Compliance with laws
Supplier shall comply with all applicable national (including state and municipal laws), foreign, international and multinational laws, treaties, rules and regulations.
In particular, Supplier warrants that it will strictly comply with all applicable anti-corruption and anti-bribery laws and Supplier shall refrain from taking any action that would cause DKSH to be in violation of any applicable anti-corruption and anti-bribery laws.
In particular Supplier also warrants that it will strictly comply with all applicable international and national export control laws and regulations. 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, Supplier will inform DKSH about the extent of the respective restrictions (including but not limited to export control legal jurisdiction, export control classification numbers, export control licenses and/or CCATS as applicable). 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.
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 Supplier’s non-compliance with applicable laws, rules and regulations.
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.
17. Requirement of written form
No amendments or waiver of any provision of the Agreement shall be valid unless made in writing.
18. No waiver
No failure on the part of either party in exercising any right, power or remedy under the Agreement will operate as a waiver thereof.
19. Severability
In the event that any of the terms or provisions of the Agreement is determined to be invalid, illegal, void or in conflict with regulations or rulings of authorities, governmental or other, or otherwise unenforceable, or if any provision or term of the Agreement shall become invalid, illegal, void and/or unenforceable at any time hereafter, all other provisions of the Agreement shall be severable and shall remain valid, binding and enforceable in accordance with their terms, and the parties agree that a provision which shall be determined to be or which shall become invalid, illegal, void or unenforceable, shall be substituted by another suitable provision which shall maintain the purposes and the intentions of the Parties of the Agreement.
20. 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, governmental act or change of circumstance beyond the control and not caused by the non-performing party provided, however, that the non-performing party (a) immediately notifies the other party of the occurrence of such an event and (b) resumes performance of its obligations hereunder without delay when such causes are removed. For the avoidance of doubt, Supplier’s economic hardship, changes in market conditions and mechanical failure of Supplier’s facility are not considered events of force majeure
In case the performance by a party of any obligation under the Agreement is rendered impossible by one of the above-mentioned events of force majeure, the parties agree to renegotiate in good faith their affected respective obligations.
21. Governing law/venue
The Supplier shall provide the Services and/or supply the Products with professional autonomy, although in accordance with the general guidelines or directives established by DKSH in the Order.
The Supplier undertakes to take care of the labour, tax and Social Security obligations relating to its employees (and, if any, those of its subcontractors and the employees of its subcontractors) and to indemnify DKSH for all economic damages and expenses, of whatever nature, that may be caused to DKSH as a consequence of any claim in labour, tax and Social Security matters relating to its employees (and, if any, those of its subcontractors and the employees of its subcontractors).
For these purposes, the Supplier undertakes to provide DKSH, if it has not provided it during the approval process or when it has been required to do so during the monitoring and evaluation process, at the time of issuing the Order, with the corresponding specific certificates of being up to date with its obligations to Social Security and the Tax Authorities.
Likewise, the Supplier undertakes to provide DKSH, prior to the commencement of the provision of the Services, with the Social Security registration certificates of its personnel assigned to the same. In any case, if there is subcontracting, the Supplier must require the same obligations in relation to its subcontractor.
22. Governing law/venue
The Agreement and all legal relations between the Supplier and DKSH shall be governed exclusively by Spanish law to 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.
Any disputes arising out of or in connection with the Agreement shall be resolved exclusively before the courts in Barcelona, Spain.
In case of inconsistency with the Spanish version of these GCP, the English version of these GCP shall prevail.
Barcelona, June 27, 2024
