1. Applicability
1.1 The present General Conditions of Purchase (“GCP”; version as available at https://www.dksh.com/jp-en/general-conditions-of-purchase-dksh-mes-japan on the date of confirmation by Supplier) shall replace and supersede any prior offers, negotiations and agreements concerning the subject matter hereof and shall govern any order for products (“Products”) or services (“Services”) placed by DKSH Market Expansion Services Japan K.K. (“DKSH”) (“Order”) and, together with the terms of such Order, shall constitute the entire agreement between DKSH and Supplier (“Supplier” means each person or entity that enters into an agreement with DKSH about the supply of Products or provision of Services by Supplier to DKSH) relating to such Order (“Agreement”).
1.2 DKSH is entitled to update and/or amend these GCP and by and as of the moment of (i) notifying Supplier of such update or amendment or (ii) sending Supplier the updated or amended GCP, these revised GCP shall automatically apply.
1.3 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 or the provision of Services by DKSH without express rejection of conditions conflicting with these GCP shall in no way constitute recognition of or consent to such conflicting conditions.
2. Order / 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 seven (7) 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 seven (7)-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.
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 seven (7)-day period, constitute an implicit acceptance by Supplier of DKSH’s Order and these GCP.
2.3 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. Packaging / classification/ labelling
3.1 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 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 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 Supplier’s cost.
4. 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.
4.2 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 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.
4.3 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.
4.4 The Supplier shall only be entitled to make partial deliveries upon DKSH’s written approval.
5. Essential data relating to deliveries
5.1 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 / delay
6.1 The agreed delivery date shall be binding. The Supplier shall promptly notify DKSH in writing if it anticipates that it will not be able to meet the date stated in the Order (“Delivery Date”).
6.2 Acceptance by DKSH of a late delivery shall not be deemed a waiver of its right to claim damages for late delivery.
6.3 In addition to its statutory rights, DKSH is entitled to claim from Supplier reimbursement of any penalties, damages, costs and expenses payable by DKSH to its customers due to Supplier’s delay in delivery.
7. Prices
7.1 Unless otherwise agreed in the Agreement, all prices shall be in JPY.
7.2 Except as otherwise agreed in writing by the parties, the prices specified in the Agreement (i) are fixed and firm and (ii) shall include all costs and charges to be incurred by Supplier, including, without limitation, installation and other service charges, all applicable taxes and duties, all wages and fees for Services and materials, all charges for transportation, packaging, and returnable containers, all costs of design, engineering and development and all costs for property that may be obtained or required by Supplier for use in the manufacture, fabrication, or assembly of the Products or performance of the Services called for by the Agreement.
8. Invoicing / payment
8.1 Unless otherwise agreed in writing, all invoices shall be paid by DKSH net within 60 days of receipt of the invoice to the account in the Order. All invoices shall state the order number and the material identification number as well as specify statutory taxes separately.
8.2 Payment of an invoice by DKSH does not in any way constitute acceptance of delivery or the invoice.
9. Inspection / notification of defects
9.1 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.
10. Warranty
10.1 Supplier warrants (i) that it shall diligently perform Services with due skill, care and diligence and to the highest degree of workmanship and quality, and (ii) that the Products properly function and are in conformity with the agreed specifications and requirements, are in conformity with newest technical standards and with laws and regulations applicable in the country of manufacture and 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”) for a warranty period according to the shelf life indicated on the respective Product or, if no shelf life is applicable, for a warranty period of 2 (two) years from delivery of Products/Services (the “Warranty Period”). 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.
10.2 The Supplier is responsible for any defects in the Products or Services 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/reperform the Services or refund the amount paid for the defective or nonconforming Products and Services. Additionally, DKSH 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.
11. Product liability
11.1 Product liability shall be borne by the Supplier. The Supplier shall defend, indemnify, and hold DKSH harmless from and against all claims, damages, losses, liabilities, costs and expenses (including but not limited to court costs and attorneys' fees reasonably incurred) arising out of any death, injury to any person or property damage resulting or claimed to result from any actual or alleged defect in a Product or any statement or misstatement contained in the packaging, labeling, instructions, warnings and/or documentation of the Product (each a “Product Liability Claim”), unless DKSH is responsible for the defect in the Product(s) or statement or misstatement which caused the Product Liability Claim.
12. Product recall
12.1 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. Insurance
13.1 The Supplier shall, at its expense, purchase and, for a period of two years after the last delivery of Products/Services is made under these GCP, maintain in force adequate insurance covering its liabilities under the Agreement, in particular but not limited to a product liability insurance, with coverage customary to the respective industry but of not less than JPY 1,700,000,000 per damage event. Upon DKSH’s request, the Supplier shall furnish DKSH certification evidencing such insurance.
14. Intellectual property rights
14.1 The Supplier warrants that neither the trademarks or any other intellectual property rights related to the Services and 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.
14.2 DKSH shall be authorized to use trademarks/logos/marks and other data that are affixed to the Products or on their original packaging as well as in the advertising material provided by Supplier.
14.3 Supplier shall make available to DKSH, at no charge, information, samples and advertising material regarding the Products and Services requested.
15. Limitation of liability
15.1 DKSH’s liability and 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.
16. Confidentiality
16.1 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.
16.2 “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.
16.3 Clause 16 shall survive the termination or expiration of any Agreement by five (5) years.
17. No Assignment / sub-contactors
17.1 Neither the Agreement’s contractual status 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.
18. Compliance with laws
18.1 Supplier shall comply with all applicable national (including state and municipal laws), foreign, international and multinational laws, treaties, rules and regulations.
18.2 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.
18.3 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 and/or export control licenses, 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.
18.4 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.
18.5 Unless otherwise agreed, the Supplier shall be responsible for compliance with legal and official regulations relating to import, transport, storage and use of any Products.
19. Responsible Business Conduct
19.1 DKSH applies responsible business practices as expressed in its Code of Conduct (available at https://www.dksh.com/global-en/home/about-us/sustainability#policies) and other relevant policies. Specifically, DKSH is committed to conducting its business responsibly – always acting lawfully and with high ethical standards, respecting human rights, offering decent and fair working conditions, and taking responsibility for our environmental impacts, in line with its DKSH Code of Conduct and its commitment to the Ten Principles of the United Nations Global Compact.
19.2 DKSH expects its business partners in its supply chain (such as suppliers, contractors, consultants, etc.), and, hence, also the Supplier and its officers, directors, employees, and agents, to meet and commit to DKSH’s standards of doing business, as outlined in DKSH’s policy on Supplier Business Conduct (available at https://www.dksh.com/global-en/home/about-us/sustainability#policies), which is summarized hereunder in clause 19.3. Therefore, DKSH reserves its rights to turn down business opportunities, or to discontinue business relationships with business partners, including the Supplier, who do not meet DKSH’s expected standards of doing business.
19.3 DKSH’s expected standards of doing business, as summarized from DKSH’s policy on Supplier Business Conduct, are as follows:
WHAT WE EXPECT FROM OUR SUPPLIERS
Lawful and ethical business conduct
• Suppliers shall always act in a lawful and ethically sound manner. Suppliers shall not engage in fraudulent or otherwise corrupt activities, including the provision of favors with the purpose of securing business with or for DKSH.
• Suppliers shall disclose any conflict-of-interest situation prior to entering a relationship with DKSH, or as soon as such a situation arises during an ongoing relationship. All business dealings between the Supplier and DKSH and its employees shall always be open, fair, and transparent.
Decent working conditions and respecting human rights
• Suppliers shall respect international proclaimed human rights and ensure that they do not engage in or are complicit in human rights abuses.
• Suppliers shall ensure that working conditions throughout their operations comply with the International Labor Organization’s Declaration of the Fundamental Rights at Work, advocating:
- freedom of association and the effective recognition of the right to collective bargaining,
- the elimination of forced or compulsory labor,
- the abolition of child labor and
- the elimination of discrimination in respect of employment and occupation
• Suppliers shall enable grievance procedures as well as the reporting of concerns or illegal activities in the workplace, without threat of reprisal, intimidation, or harassment.
Health and safety
• Suppliers shall offer safe workplaces and exercise care about workers’ health and well-being, protecting them against occupational hazards by having an appropriate management system in place to identify and mitigate workplace hazards, and to prevent injuries and illnesses; workers shall be equipped with adequate safety equipment.
Environmental stewardship
• Suppliers shall respect the environment and shall take adequate measures to protect the environment and to minimize adverse impacts through an appropriate management system to prevent spills and to handle waste in an environmentally responsible manner, to preserve water resources, to minimize emissions and to prevent or minimize other adverse impacts.
Minerals and metals from conflict areas (“Conflict Minerals”)
• Suppliers shall disclose to DKSH whether any of their products supplied to DKSH contain any Conflict Minerals (ref. OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas).
19.4 By the acceptance of any Order placed by DKSH and/or by delivering/suppling goods to DKSH, Supplier acknowledges to have taken note of DKSH’s Code of Conduct (https://www.dksh.com/global-en/home/about-us/sustainability#policies) and DKSH’s expectations under its Policy on Supplier Business Conduct (https://www.dksh.com/global-en/home/about-us/sustainability#policies) as summarized hereinabove in clause 19.3 and commits to fully comply with them whenever performing work or services / supplying goods to DKSH. DKSH’s Code of Conduct and Policy on Supplier Business Conduct are subject to updates and/or amendments from time to time and Supplier hereby accepts such updates and/or amendments (as made available at https://www.dksh.com/global-en/home/about-us/sustainability#policies, and/or as otherwise notified by DKSH).
19.5 Supplier understands and agrees that DKSH may collect information on the Supplier (via due diligence, pre-agreed audits or otherwise) to verify the Supplier’s business conduct against DKSH’s expectations, and Supplier agrees to furnish DKSH with information as reasonably requested by DKSH from time to time to conduct such verification. Where DKSH has reason to believe that the Supplier falls short of DKSH’s expectations, Supplier acknowledges DKSH’s right to turn down business opportunities or to seek discontinuation of the relationship, unless DKSH and Supplier agree on collaborating towards establishing adequate improvement plans and actions to address DKSH’s findings resulting from due diligence, pre-agreed audits or otherwise.
19.6 Supplier agrees to immediately inform DKSH on occurrence of incident or other matters which could adversely affect DKSH’s business – either by directly reaching out to the Supplier’s business contact at DKSH or reporting via DKSH’s Integrity Line (https://dksh.integrityline.org). DKSH furthermore expects Supplier to report via the Integrity Line any Supplier concerns over improper conduct by DKSH personnel or other suppliers acting for and on behalf of DKSH.
19.7 Supplier furthermore agrees to take necessary measures to select and work with suppliers and sub-contractors who conduct their business responsibly, in a manner as outlined herein above.
20. Requirement of written form
20.1 No amendments or waiver of any provision of the Agreement shall be valid unless made in writing.
21. No waiver
21.1 No failure on the part of either party in exercising any right, power or remedy under the Agreement will operate as a waiver thereof.
22. Severability
22.1 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.
23. Force majeure
23.1 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 have been 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.
23.2 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.
24. Governing law / venue
24.1 The Agreement and all legal relations between the Supplier and DKSH shall be governed exclusively by the laws of Japan 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.
24.2 Any disputes arising out of or in connection with the Agreement shall be resolved exclusively before the courts in Tokyo, Japan.
