General terms and conditions of purchase (Delpharm POZNAŃ)
GENERAL TERMS AND CONDITIONS OF PURCHASE (GTC) BY DELPHARM POZNAŃ S.A. effective as of July 1, 2022
1.1. "Affiliate" means an entity that is directly or indirectly controlled by Supplier or DPH, has direct or indirect control over Supplier or DPH, or is under common control with Supplier and DPH. For the purposes of these Terms and Conditions, control over a given entity is understood in particular as a situation in which the Company directly or indirectly holds more than 50% of the shares of such entity, as well as a situation in which the Company is able to exert a decisive influence on the actions or activities undertaken by such entity on the basis of its powers resulting from legal or actual circumstances.
1.2. "Agreement" means: 1) the purchase order submitted by DPH with any attachments, including the Specifications, and in application of these Terms and Conditions, accepted by Supplier as described within the Terms and Conditions 2) the quotation submitted by DPH in application of these Terms and Conditions and accepted by Supplier 3) the Bilaterally Signed Agreement between DPH and Supplier.
1.4. "Goods" means tangible goods, the purchase and delivery of which are specified in the Order.
1.5. "Incoterms" means the commercial terms set forth in the Incoterms 2020 publication issued by the International Chamber of Commerce (ICC) to the extent that the Incoterms terms are not modified by the provisions of the Order or the Terms and Conditions.
1.6. "Intellectual Property Rights" means any rights protected by national laws, regional regulations (e.g. European Union) or under international treaties concerning objects that are the product of creative (human or digital) activity, in particular such as inventions, legally protected discoveries, utility and industrial designs, whether or not they can be covered by a patent or registration, business secrets (know-how) including, but not limited to, processes structures of matter, formulas, methods of use or delivery, data, reports, specifications, suppliers, business terms and conditions, as well as copyrights and related rights, trademarks, and other indications used in legal transactions, domain rights, rights of use of reputation, database rights, and other intellectual property rights recognized in the legal order of particular countries; in each case, regardless of whether they are registered or unregistered;
1.7. "Intellectual Property" means any subject matter of the Intellectual Property Rights.
1.8. "Works" means Intellectual Property protected by copyright or related rights.
1.9. "Losses" means all damages, losses, claims, liabilities, costs, fees awarded, damages resulting from having to pay penalties, expenses (including attorneys’ fees and other professional services costs), and compensation of any nature, whether or not reasonably foreseeable or avoidable.
1.10. "Packaging" means any packaging for the Goods or packaging associated with the Goods, including but not limited to any bags, crates, cylinders, drums, barrels, pallets and other containers.
1.11. "DPH " means the company Delpharm Poznań S.A. with its registered seat in Poznań, Grunwaldzka 189, 60-322 Poznań, registered in the Register of Entrepreneurs of the National Court Register kept by the District Court Poznań - Nowe Miasto and Wilda in Poznań, VIII Economic Department of the National Court Register under the number: 0000014494, share capital PLN 147,893,140.00, paid in full, NIP: 777-00-00-206, REGON: : 6303441, registration number referred to in Article 63 of the Waste Act: 000092983.
1.12. "Order" means an electronic file specifying the order number and DPH’s requirements for the Goods or Services to be purchased, attached to an electronic mail message sent from an electronic mail DPH to an electronic mail address designated by Supplier.
1.13. "Services" means the services specified in the Order other than the sale or delivery of the Goods.
1.14. "Specification" means a specification for the Goods or Services that is provided to Supplier by DPH or submitted by Supplier and agreed to in writing or document by DPH.
1.15. "Supplier" means the entity to which the Purchase Order is addressed.
1.16. "Terms and Conditions" means the terms and conditions set forth herein.
2. APPLICATION OF THESE TERMS AND CONDITIONS
2.1. These Terms and Conditions shall apply to the cooperation of the Parties relating to the sale or supply of Goods or performance of Services specified in the Agreement, unless the Parties exclude the application of particular provisions of the Terms and Conditions in a bilateral agreement signed in writing. At the same time, the Parties agree that in no case shall any general terms and conditions or any other type of contractual patterns established or applied by the Supplier apply to the Parties’ cooperation, unless DPH gives its separate and express written consent to the application of the Supplier’s templates. DPH excludes the possibility that the supplier’s general terms and conditions are otherwise acceptable, particularly on the basis of the mere fact that DPH refrained from commenting on those terms and conditions after receiving them.
2.2. A Purchase Order constitutes an offer by DPH to purchase the Goods or Services set forth herein in accordance with these Terms and Conditions. The offer to enter into the Agreement shall be deemed to have been accepted by the Supplier after the following events, whichever occurs first: (a) Supplier delivers DPH’s acceptance of the Purchase Order in writing, or (b) Supplier performs any act consistent with the performance of the Purchase Order, or (c) at least two (2) business days have elapsed since DPH sent the Purchase Order, and during that time Supplier has not provided DPH with a statement rejecting DPH’s offer. Upon DPH’s request, Supplier shall deliver to DPH an acceptance of the order in writing no later than two (2) business days after delivery to Supplier of DPH’s request therefor.
2.3. The application of Article 661, Article 68, Article 72 § 1 and Article 3854 of the Civil Code is excluded with respect to the conclusion of Agreements under these Terms and Conditions. Supplier shall not be entitled to amend, supplement, or accept with reservations any offer submitted to Supplier by DPH, regardless of the extent of the amendment supplement or reservation. DPH’s offer may be accepted or rejected by Supplier only in its entirety. Any desire for change should be agreed upon and approved by DPH.
2.4. In no case shall DPH’s failure to respond to the statement sent by e-mail lead to the creation, modification or termination of a legal relationship. The application of Article 682 and Article 69 of the Civil Code, insofar as they apply to offers addressed to DPH, is also excluded under these Terms and Conditions.
3. SUPPLY OF GOODS AND SERVICES
3.1. The Supplier shall deliver the Goods and perform the Services at the time and place specified in the Agreement or Purchase Order. Supplier will provide DPH with details of the estimated lead time between the placement of the Order and the delivery of any Goods and will keep DPH informed of the ongoing progress of the Purchase Order. Each delivery of Goods shall be accompanied by a delivery note (and any other delivery documentation specified in the Purchase Order or otherwise in the Agreement) indicating the date of the Purchase Order, the Purchase Order number, the type and quantity of Goods to be delivered, (if any) special storage instructions and, if Goods are delivered in batches, the remainder of the Goods to be delivered. If delivery of the Goods or performance of the Service is in breach of the Agreement, the Supplier shall be liable for all costs incurred as a result. The quantity of Goods or Services specified in the Agreement may not be changed without the prior written consent of DPH. Goods or Services delivered in excess of those specified in the Agreement shall not be accepted by DPH, and if accepted, DPH shall not be obligated to pay for them, and Supplier shall promptly remove them at its own expense.
3.2. Supplier shall not deliver the Goods in batches without DPH’s prior written consent. If it is agreed that the Goods are to be delivered in batches it is possible to invoice and pay for them separately (at DPH’s discretion). However, Supplier’s failure to deliver any batch on time, or any defect in a batch, shall entitle DPH to exercise the rights set forth in item 7 (subject to DPH’s other rights).
4. TRANSFER OF TITLE AND RISK IN GOODS
4.1. Except as otherwise provided in the Incoterms agreed between the Parties or under a bilaterally executed Agreement, the benefits and burdens of the Goods shall pass to DPH upon DPH’s acceptance of delivery at the place specified in the Agreement.
4.2. Neither payment nor transfer of the benefits and burdens associated with the Goods or Services to DPH shall be deemed to constitute acceptance of the Goods or Services.
5. PRICE AND PAYMENT TERMS
5.1. The price for the Goods or Services is determined by the Purchase Order. The price set forth in the Purchase Order shall include all expenses, costs and charges incurred by Supplier and shall exhaust all financial claims of Supplier and its employees and subcontractors for the performance of the Agreement and for DPH’s use of the work performed hereunder in accordance with the Agreement. Any increase in price, for whatever reason, shall require the express prior written consent of DPH under penalty of nullity.
5.2. The price specified in the Purchase Order is a net amount, exclusive of VAT, but it includes all other public and legal charges, in particular duties and taxes, including the so-called "withholdingtax". Within 14 days of DPH’s delivery to Supplier of a request to that effect, Supplier shall deliver to DPH the original residency certificate relating to Supplier. In case of non-delivery of the aforementioned document to DPH, or its delivery with failure to comply with the aforementioned deadline, all consequences of such event shall be borne by the Supplier. Specifically, this includes DPH’s failure to apply the tax rate under the relevant international agreement.
5.3. In the event Supplier assigns or licenses Intellectual Property Rights to DPH, the price set forth in the Purchase Order shall include remuneration therefor (with respect to all uses of the Intellectual Property, including all fields of exploitation under the Agreement or the GTC, and regardless of the benefits DPH derives from exploiting the subject of the Intellectual Property Right), including all costs Supplier has incurred in connection with obtaining the rights enabling the performance of the Agreement in this respect. In addition, Supplier shall indicate the price for transferring or licensing Intellectual Property Rights as a separate amount on the invoice. If no such amount is specified in the Agreement, it shall be deemed to be 10% of the price specified in the Purchase Order and included in such price.
5.4. Unless otherwise provided in the Agreement or Purchase Order or mandatory provisions of law, Supplier’s invoice and payment of the price by DPH to Supplier shall be made upon delivery of all of the ordered Goods or performance of the Service in full in accordance with the Agreement or Purchase Order and DPH’s confirmation of the foregoing in writing. Payment shall be made by DPH within 60 days (unless otherwise specified in the Agreement or Purchase Order) of Supplier’s issuance of an invoice meeting the requirements of the Agreement and the law.
5.5. All invoices issued by Supplier must include the Purchase Order number. Failure to include the correct Purchase Order number in the invoice shall constitute a breach of the Agreement by Supplier preventing DPH from proceeding with the authorization and payment of the amount due set forth in the invoice. Delivery of an invoice that does not include a valid purchase order number will not trigger the due date for payment and such invoices will be considered as incorrectly issued.
5.6. Delpharm Poznań Sp. z o.o. declares that it has the status of a large entrepreneur within the meaning of Article 4c of the Act of 8 March 2013 on counteracting excessive delays in commercial transactions (i.e. Journal of Laws of 2022, item 893, as amended).
5.7. The Supplier shall send invoices directly to the address of the DPH’s Finance Firm indicated in the Purchase Order. Delivery of the invoice to any other address (even the address of DPH’s registered office), shall constitute a breach of the Agreement by the Supplier resulting in lack of commencement of the payment period for the amount indicated in the invoice until it is delivered to the correct address.
5.8. In the event that DPH reasonably believes that any invoice submitted by Supplier is defective or relates in whole or in part to Goods or Services not in accordance with the Agreement, DPH shall be entitled to withhold payment of the disputed amount pending resolution of the dispute between the Parties.
5.9. Supplier shall not be entitled to set off any amounts owed by Supplier to DPH against any amounts owed by Supplier to DPH, without DPH’s prior written consent under penalty of perjury.
6. THE QUALITY OF THE GOODS AND THEIR FITNESS FOR PURPOSE
6.1. The Goods and Services provided must also conform in all respects to the Agreement and any laws and regulations and documents (including standards or norms) issued pursuant thereto, as well as standards and norms whose application is accepted in the industry in which Supplier operates, unless the application of such standards or norms confers on DPH a standard of Goods and Services less favorable to DPH than that implied by the Agreement or by law.
6.2. Notwithstanding item 6.1, the Goods shall be delivered with adequate instructions for their use and no later than 2/10ths of their minimum shelf life or usefulness (unless otherwise agreed separately with the Supplier), in a condition fit for their intended use, of the highest quality and free from defects in design, material and workmanship.
6.3. Supplier shall ensure that the Goods comply with all requirements relating to the manufacture, labeling, packaging, storage, transportation and delivery of the Goods as required by law and by industry standards or norms whose application is accepted in Supplier’s line of business, unless the application of such standards or norms confers on DPH a standard of Goods and Services less favorable to DPH than that resulting from the Agreement or the law.
7. NON-ACCEPTANCE, REPAIR AND REPLACEMENT OF GOODS
7.1. In the event the Goods do not conform to the Agreement, notwithstanding DPH’s ability to exercise its rights under common law, DPH may in its sole discretion:
7.1.1. not accept the Goods (in whole or in part) and return them to the Supplier at the Supplier’s risk and expense; and/or
7.1.2. require the Supplier to repair or replace the Goods as soon as reasonably practicable at the place of delivery or the Supplier’s premises, as DPH may determine, or to refund to DPH any amounts paid in respect of any Goods which do not conform to the Agreement (and the repaired or replaced Goods shall be subject to the obligations set out in the Agreement); and/or
7.1.3. in the event of an incorrect delivery, require the Supplier to promptly reimburse DPH for any cost (including, but not limited to, transportation, customs clearance, duty and storage charges) incurred by DPH as a result; and/or
7.1.4. purchase elsewhere Goods which will comply with the Agreement to the fullest extent possible, for reimbursement of the excess cost so incurred by the Supplier based on DPH’s request, provided that prior to exercising such right to purchase, DPH shall reasonably allow the Supplier to replace the unaccepted Goods with Goods which will comply with the Agreement; and/or
7.1.5. claim damages for any other costs, Losses or expenses incurred by DPH that are related to Supplier’s failure to perform its obligations under the Agreement.
7.2. In the event that the Goods are not accepted (in whole or in part) in accordance with items 7.1.1 to 7.1.5 above, DPH shall notify the Supplier in writing and the payment obligation in respect of such delivery shall be suspended.
8. AGREEMENT PERFORMANCE STANDARD
8.1. The Supplier shall exercise the greatest care in performing any activities aimed at carrying out the tasks entrusted to it under the Agreement, which shall be assessed taking into account the professional nature of the Supplier’s business.
8.2. The Supplier guarantees and warrants that all actions taken by it in order to perform the Agreement will be in compliance with applicable laws and will not infringe rights of third parties. If a consent of a third party or a public administration authority is necessary for the Supplier to perform its obligations, the Supplier shall be obliged to obtain such consent.
8.3. The Supplier shall ensure that all its personnel and subcontractors are duly licensed and qualified and that all necessary licenses, work permits and other authorizations have been obtained for the proper performance of the Agreement by the Supplier.
8.4. If any materials necessary for Supplier’s performance of its services are not provided in full in accordance with its provisions under the Agreement or under generally applicable law, Supplier shall promptly make up the resulting shortfall and shall be responsible for all additional costs and expenses incurred by the parties in connection therewith.
8.5. DPH will be entitled to withhold all payments relating to the Agreement if Supplier’s performance does not conform to the Agreement or if performance is delayed.
8.6. If the Services do not conform to the Agreement, DPH will have the right to purchase substitute Services that conform to the Agreement to the fullest extent possible, with reimbursement of the excess cost so incurred by Supplier based on the request. Prior to exercising such right to purchase Services from an alternative provider, DPH shall allow the Supplier to replace the Services for which payment has been canceled with Services that comply with the Agreement.
9.1. The Supplier shall pack and mark the Goods in a manner suitable for their transport and storage so as to ensure delivery of the Goods to their destination in a condition consistent with the provisions of the Agreement. DPH shall not be obligated to pay for or reimburse for the Packaging unless expressly agreed in advance between the Parties and confirmed in writing. Supplier shall ensure that Packaging complies with the law, including environmental requirements and health and safety standards. The Supplier shall make improvements to Packaging to improve its environmental friendliness and, to the extent practicable, shall use minimal Packaging, recyclable Packaging and recycled Packaging materials.
10. INTELLECTUAL PROPERTY RIGHTS
10.1. All materials provided to the Supplier by DPH or an entity acting on its behalf, in particular Specifications, assumptions, source materials in the form of, in particular, trademarks, photos, graphics, as well as know-how and possible creative contribution of DPH’s employees in the performance of the Agreement, etc. are owned or vested exclusively in DPH or an Affiliate and shall be used by the Supplier solely for the purpose of proper performance of the Agreement. All Intellectual Property Rights in the foregoing materials shall remain with DPH or the applicable Affiliate.
10.2. If the subject of the order is the creation of Intellectual Property for the benefit of DPH, Supplier states and agrees that:
(a) on the date of transfer of the Intellectual Property to DPH, DPH shall own the Intellectual Property Rights to such Intellectual Property and shall own the media that record the Intellectual Property (e.g., copies of the Works), to the extent necessary to perform Supplier’s obligations under the Agreement
(b) all outstanding monetary claims by third parties in connection with Supplier’s exercise or acquisition of the Intellectual Property Right and media ownership right shall be satisfied in full;
(c) The Intellectual Property shall not, without the prior consent of DPH, be made available to the public or otherwise distributed prior to and after the date of its transfer to DPH.
10.3. In case when the subject of the order is creation of Intellectual Property for the benefit of DPH, Supplier, at the moment of issuing Intellectual Property to DPH, transfers all Intellectual Property Rights for the benefit of DPH, in particular rights to obtain a patent, utility model or industrial design, rights to trademark, and in case when the subject of the order is creation of Work, proprietary copyrights and rights to permit exercising dependent rights in all fields of exploitation indicated in art. 50 (Works other than computer software) or Art. 74 of the Act of 4 February 1994 on Copyright and Related Rights, including in particular fields of exploitation:
1) within the scope of recording and multiplication of the Work - production of copies of the Work by a specified technique, including printing, reprography, magnetic recording and digital technique;
2) within the scope of marketing of the original or copies on which the Work has been recorded - marketing, lending or renting of the original or copies;
3) within the scope of distribution of the Work in a manner other than that specified in item 2 - public performance, exhibition, display, reproduction, broadcasting and rebroadcasting, as well as making the Work available to the public in such a manner that everyone could have access to it in a place and at a time selected by themselves.
and with respect to Works constituting computer software:
1) permanent or temporary reproduction of a computer program in whole or in part by any means and in any form; in the scope in which, for the introduction, displaying, using, transferring and storing of a computer software it is necessary to reproduce it, these actions require the authorized party’s consent;
2) translate, adapt, rearrange or make any other changes to the computer program, preserving the rights of the person who made these changes;
3) distribution, including lending or rental, of the computer program or a copy thereof.
The transfer of the Intellectual Property Rights shall be without limitation in time or territory.
10.4. In the event that new fields of exploitation for the Works arise after the Supplier’s transfer of the copyrights to the Works, the Supplier shall, at DPH’s request, enter into an agreement transferring to DPH the copyrights to the Works in the new fields of exploitation. The transfer of rights in the new fields of exploitation shall take place under the terms of these Terms and Conditions and under the remuneration provided for in the original agreement.
10.5. The Supplier represents and warrants that persons entitled by virtue of personal copyrights or inventive rights shall not exercise their rights in any way, in particular the Supplier confirms that DPH may use the Intellectual Property without indicating the authors’ authorship.
10.6. In the event that the Work contains an image within the meaning of Article 81.1 of the Copyright and Related Rights Act, the Supplier declares that it is entitled to authorize DPH to use such image and authorizes DPH to use it within the scope described in item 10.3 above.
10.7. To the extent Supplier creates a database as part of the performance of the Agreement, the producer of such database shall be DPH and all rights to the database shall vest in DPH.
10.8. If the subject of the order is not the creation of Intellectual Property for DPH, but only granting a license to use the previously created Intellectual Property, it is assumed that, unless the Agreement provides otherwise, Supplier grants DPH an irrevocable license to use such Intellectual Property for 30 years. The provisions of items 10.2, 10.3, 10.5, 10.6 shall apply accordingly.
10.9. Supplier represents and agrees that DPH’s use and disposal of Intellectual Property, within the limits set forth in the Agreement, will not infringe any rights of third parties. In the event that the Supplier’s statement set forth in the preceding sentence proves to be untrue, the Supplier shall be liable for infringements of Intellectual Property Rights and represents that, in the event of disputes and claims by third parties, it will satisfy all reasonable claims of such third parties and Losses and will reimburse DPH for reasonable costs incurred in connection with third party claims, in particular the costs of DPH’s legal representation in court and arbitration proceedings. DPH will inform Supplier promptly of the reports made to DPH.
11.1. Each Party undertakes not to disclose the content of the Agreement, nor any information about its counterparty, obtained in connection with the execution of the Agreement, regardless of its form, as well as regardless of whether it was obtained before or after the conclusion of the Agreement, including information regarding products, processes, techniques, technologies, research results, manufacturing method, know-how, trade secrets, customers, contractors, sales data and financial data; hereinafter "Information".
11.2. Subject to sub-item 3 below, the Parties shall not disclose the Information without the prior written consent of the other Party, unless the obligation to disclose is imposed by law.
11.3. The Parties may disclose the contents of this Agreement and information concerning its implementation and the Parties’ cooperation to their affiliates, as well as to their auditors and advisors.
11.4. Each Party agrees to use the Information solely for the purpose of performing the Agreement.
11.5. Upon execution or termination of the Agreement by either Party, each Party agrees to promptly return to the other Party or destroy (as the other Party may wish) any material that contains information relating to the other Party. Either Party will file a notice of such obligation no later than 30 days after execution or withdrawal from the Agreement.
11.6. The obligation to maintain confidentiality shall not apply to Information which became public through no fault of the Party or which had the status of public information on the day of concluding the Agreement, as well as Information which was transferred to the Party by an authorized third party and Information generally known at the time of concluding the Agreement.
11.7. DPH does not provide credentials and does not consent to the use of Customer-owned logos on Supplier’s websites and documents to the extent not necessary to perform the Agreement.
11.8. In the event of unauthorized disclosure of the Information to third parties, regardless of the form of the unauthorized disclosure, the disclosing Party will be fully liable on general terms for any damages resulting from the unauthorized disclosure of the Information.
12.1. Upon prior notice, DPH and/or such other entity as may be appointed to act on its behalf shall have the right to inspect and conduct any tests or examination of samples of batches of all Goods or the proper performance of the Services in accordance with its request at Supplier’s premises or at any other place where the Agreement was to be performed, Supplier agrees to provide DPH with adequate rights to make available appropriate premises or other place in such a manner as to inspect the performance of the Agreement. If a PSI pre-shipment inspection has been stipulated, the Supplier shall, at its own expense, facilitate such inspection and provide all necessary certificates to enable the inspection for compliance with the Agreement and generally applicable laws. If, after such inspection or audit, DPH reasonably believes that the Goods or Services are at risk of not being delivered in accordance with the Agreement, DPH shall notify Supplier and Supplier shall promptly take such corrective action as is necessary to ensure proper compliance. DPH reserves the right to conduct further inspections and testing after Supplier has completed its corrective actions.
12.2. Inspections, tests, approvals or acceptances issued on behalf of DPH with respect to the Goods or Services shall not relieve Supplier of its obligations or responsibilities under the Agreement.
12.3. Supplier shall grant a right of access to DPH and any third party that DPH appoints to inspect and test the Goods for compliance with generally applicable laws, including but not limited to environmental and health and safety laws and other requirements set forth in particular in the DPH standards and Specifications, and shall ensure that its subcontractors grant such right of access to DPH.
13. PERSONAL DATA PROTECTION
13.1. In relation to personal data (i.e. information relating to natural persons) that the Parties provide to each other in connection with the performance of the Agreement, DPH and Supplier shall act in accordance with the obligations imposed on them respectively by data protection legislation, in particular the General Data Protection Regulation 2016/679/EC ("GDPR") and local regulations issued pursuant to the GDPR.
13.2. DPH and Supplier agree to implement appropriate technical and organizational measures to ensure the protection of the personal data processed. The degree of protection of personal data should be appropriate to the risk of harm to the rights and freedoms of individuals in the event of their unauthorized disclosure, acquisition, processing, alteration, loss or destruction.
13.3. DPH and Supplier will process the data of the persons designated for ongoing contact, including data of employees and associates. For the avoidance of doubt, DPH and the Supplier processes the data of the persons authorized to contact the other Party as their separate and independent controller, in accordance with Article 6(1)(f) of the GDPR, i.e. on the basis of the controller’s legitimate interest to provide contact on day-to-day matters related to the cooperation between DPH and the Supplier and the performance of the Agreement. The scope of personal information that is shared between DPH and Supplier includes: first name, last name, business email address, business phone number, position held in one Party’s organization.
13.4 DPH and Supplier are obliged to implement the information obligation towards the contact persons of the other Party whose data it processes.
14.1. Supplier shall comply with all applicable environmental, health and safety laws, and all other applicable standards, policies and procedures, as notified by DPH from time to time, and shall ensure that its personnel and subcontractors comply with such laws, policies and procedures when working at any facility in connection with the Agreement.
14.2. Supplier will provide appropriate hazard information, such as SDS, and will keep DPH informed of all regulations and guidelines (statutory or otherwise) that are known to Supplier or that Supplier believes are related to the Goods or a combination of the Goods and another product.
14.3. Supplier shall indemnify DPH and its Affiliates, and keep them indemnified, upon demand in connection with any Losses suffered or experienced as a result of or arising out of any third party claim arising out of the actions of Supplier or Supplier’s subcontractors resulting in the alleged release of any waste, hazardous substances or other pollutants.
14.4. Supplier will endeavor to follow environmental and health and safety guidelines in accordance with generally accepted best work practices and DPH standards and other requirements.
15. RESPONSIBILITY FOR INFORMATION
Supplier shall be responsible for any errors or omissions in drawings, calculations, details on the Packaging or other data furnished by Supplier, whether or not such information has been approved by DPH, provided that such errors or omissions are not due to inaccurate information furnished in writing by DPH.
16. EMPLOYEES AND SUBCONTRACTORS OF THE SUPPLIER
16.1. For the period during which any Services are provided, the employment of any employee of Supplier shall remain the responsibility of Supplier and shall not pass or otherwise be transferred to DPH or its Affiliates. Nothing in the Agreement shall be construed or have the effect of establishing an employment or other civil law relationship of a similar nature between DPH (or its Affiliates) and Supplier’s employees and/or subcontractors. The Supplier agrees that it performs the Services as an independent contractor and assumes all responsibility for the payment of all governmental charges, including, but not limited to, income tax, social security contributions and any other taxes that may arise from the provision of the Services or delivery of the Goods by the Supplier and that are chargeable to the Supplier under the Agreement.
16.2. Supplier shall not entrust the performance of all or any part of Supplier’s obligations under the Agreement to any third party or use any such subcontractor without the prior written consent of DPH. If Supplier intends to work with a subcontractor, Supplier shall notify DPH immediately and request DPH’s approval along with justification for the reasonableness of the subcontractor’s involvement. In any event, Supplier shall be liable for the acts or omissions of subcontractors or third parties as for its own acts or omissions and shall ensure that any such subcontractor or third party agrees to be bound by the same provisions as those of the Agreement.
16.3. Prior to working with a subcontractor or third party, Supplier agrees to verify that there is no conflict of interest between the subcontractor/third party and DPH and that the subcontractor/third party is not related to DPH or DPH employees by capital, personal or otherwise.
16.4. Supplier shall notify DPH at least 2 months in advance of commencing work with a new subcontractor or third party for DPH’s review of the subcontractor/third party.
17. SOFTWARE DEFECTS AND HARDWARE AND SOFTWARE MAINTENANCE
17.1. Supplier warrants that if Supplier provides DPH with software developed for DPH or used by DPH under a license provided by Supplier that such software will be:
17.1.1. free of viruses, malware, Trojan horses, worms, spyware, adware, and fragments designed to permit in any manner unauthorized access to or disable such software, make unauthorized changes to the content of the software or databases, or otherwise cause damage;
17.1.2. free from defects that may cause damage to the database or loss of data stored in these databases;
17.1.3. duly inspected to ensure that the risks described above do not occur and Supplier shall ensure that similar obligations are imposed on its subcontractors or persons used by Supplier to perform the Agreement;
17.1.4. not contain any open-source, freeware or shareware code (unless otherwise agreed in advance by DPH in writing); and
17.1.5. provided with comprehensive user documentation and will function substantially in accordance with such documentation;
17.2. Supplier shall indemnify DPH and its Affiliates and keep them indemnified, upon request, for any Losses suffered or experienced as a result of or in connection with Supplier’s breach of the warranties set forth in item 17.1 above.
17.3. Where the subject matter of the Agreement is the provision of IT hardware or software maintenance services, Supplier agrees to provide, unless otherwise provided in the Agreement, the following services to DPH:
a) make emergency repairs to IT equipment or fixing software defects;
b) perform periodic maintenance inspections of IT equipment, consisting in particular of:
i. diagnostics of correct operation of computer equipment and computer network belonging to the DPH of one Windows server, together with removal of identified hardware and software defects;
ii. verification that antivirus software is working properly and that signatures are updated on the computers of all DPH network users;
iii. data archiving to the extent agreed upon with DPH;
iv. ensuring correct and stable operation of the software used by DPH;
v. reviewing the contents of hard drives and organizing their contents in cooperation with the user of a given computer
c) advice on DPH’s implementation of new IT services;
d) providing advice and consultation on selecting optimal solutions related to network development and equipment operation, as well as on the usability of installed software.
17.4. All services under the maintenance services shall be performed based on requests made by DPH indicating the need for Supplier to perform certain work (hereinafter referred to as: "Request"). At a minimum, the Request made by DPH shall indicate the type and scope of work to be performed by the Supplier. Requests will be accepted by the Supplier 24 hours a day on all days of the week. The Parties agree to the following deadlines for confirmation of receipt of a Request by Supplier:
i. in the case where a Request is made on business days between 9:00 a.m. and 6:00 p.m., no later than 6 hours after making the Request;
ii. if a Request is made outside the hours referred to in point i. above or on a public holiday, including Saturdays - not later than 12 hours after the Request.
Supplier agrees to indicate the maximum estimated time commitment and completion date for the work covered by the Request. The Request shall be deemed completed when DPH confirms that the Request has been duly completed. If DPH comments on the manner in which the Request is performed, DPH will report those comments to the Supplier. DPH will acknowledge due performance of the Request after Supplier has complied with the comments. Unless the Agreement provides otherwise or the Parties agree otherwise, the Supplier undertakes to perform maintenance services:
i. within 48 hours if a Request is identified as "urgent"; and
ii. within 5 business days for all other Requests
from the time the Request is received by the Supplier. The above deadlines may be extended with the approval of DPH.
18. LIABILITY EXEMPTION
The Supplier shall indemnify DPH and its Affiliates in respect of any Losses suffered or experienced as a result of or in connection with any defect in the Goods or Services or any breach by the Supplier of its obligations under these Terms and Conditions, the Agreement or any statutory duty or any act or omission of the Supplier’s employees, agents or sub-contractors which could expose DPH to damage.
19. ETHICAL STANDARDS AND HUMAN RIGHTS
Delpharm CSR Policy
Compliance with policies and principles of Corporate Social Responsibility (CSR) and environmental protection.
In terms of this policy, DPH has committed, on behalf of itself and its business partners, to comply with a specified number of ethical, socially and environmentally responsible actions.
These commitments represent the minimum requirements that Suppliers, their business partners and subcontractors must adhere to in order to work with DPH, in accordance with the principles indicated in the International Labour Organization Conventions, the UN Guiding Principles on Business and Human Rights and the OECD Guidelines.
As part of this policy, Supplier represents on behalf of itself, as well as its subcontractors and Supplier’s business partners involved in the delivery of benefits under the Agreement, that:
I. Human rights and employment principles:
no employee is subjected to slavery, servitude, forced labor or human trafficking (under the threat of any sanction), the seizure of identification documents, or the forcible seizure of other items belonging to such employees, nor is any employee under any other duress caused by Supplier, subcontractors, and Supplier’s business partners involved in the delivery of the benefits covered by the Purchase Order;
does not employ workers under the age of fifteen and, in the case of countries where the minimum age of employment is higher or compulsory education lasts longer, does not employ workers who are prohibited from employment or compulsory education;
all employees are registered with the appropriate authorities and employed in accordance with applicable labor laws and the requirements of the country in which Supplier, its subcontractors or business partners operate;
all employees enjoy equal and fair opportunity and treatment without discrimination in any area, including working hours, access to training and promotion, salary conditions, employment evaluation, evaluation of the redundancy of their position, termination of employment, or for any reason based on sex, race, color, social or ethnic origin, sexual identity and orientation, religious beliefs, disability, political affiliation, national origin, marital status or any other grounds of discrimination prohibited under the applicable laws of the jurisdiction;
all employees are paid regularly and in accordance with minimum wage laws, are paid overtime in accordance with legal requirements, and are not restricted in the exercise of rights granted by applicable labor laws;
the provisions of national law on working hours and overtime are complied with, the total number of hours in a week, including overtime, must not exceed 60 hours, and workers must be entitled to at least one day of rest in a period of seven consecutive days;
health and safety regulations are complied with (employees are treated in a fair and compliant manner); Supplier and its subcontractors and business partners agree to implement an effective system to detect, prevent and mitigate health and safety risks;
employees are treated with respect and dignity and are not subjected to any form of corporal punishment, or threats thereof, or any other type of violence of a physical, sexual, psychological or bullying nature;
workers are free to form and join trade unions and have the right to bargain collectively, without being subjected to penalties, discrimination or harassment on these grounds;
II. Additional assurances:
Supplier, and any of its subcontractors or business partners, shall comply with all laws relating to the conduct of their business and shall act in accordance with national and international competition laws;
Supplier, as well as each of its subcontractors or business partners, shall operate in compliance with the relevant national environmental laws and international standards; they shall strive to reduce their impact on the environment, in particular through the use of environmentally friendly technologies and the proper handling of waste generated and emissions into the air and water; hazardous waste shall not be stored or abandoned in an unlawful manner, nor shall emissions of hazardous substances into the air and water be conducted in accordance with the relevant regulations;
Supplier, and any of its subcontractors or business partners, shall not use minerals in their operations that originate in conflict or high risk areas (which include minerals or metals made from gold, tin, tungsten and tantalum: columbite-tantalite - aka Niobite, Columbate, Coltan, tantalum; Cassiterite - aka Tin Oxide, Tin Ore; Tungsten - Tungsten; Gold - Gold salts);
Supplier also agrees to respond to any CSR or environmental inquiries sent by DPH and to notify DPH of any event that could cast doubt on the truth or accuracy of the above assurances;
Supplier agrees to take corrective action, and to ensure that its subcontractors and business partners take such action, with respect to any deficiencies perceived by Supplier or DPH;
In the event that any subcontractor or business partner of Supplier, conducts its business in a manner inconsistent with the terms of DPH’s GTC, or violates any applicable law or commits a prohibited act, DPH shall not be liable and Supplier shall indemnify DPH against any and all liability for such violation or prohibited act, whether monetary or otherwise. In addition, Supplier shall indemnify and hold DPH blameless in any dispute regarding noncompliance with the provisions of DPH’s GTC or arising from any judgment that results from a violation of the provisions of this document;
Supplier shall immediately terminate any subcontract to its contractors or any other agreement binding it to business partners involved in the delivery of benefits under the Agreement if their actions do not comply with item 19.
20. TERMINATION OF THE AGREEMENT
20.1. In the event of improper performance of the obligations of the Agreement by either Party, the other Party shall be entitled to call upon the breaching Party to immediately restore the performance of its obligations to a state consistent with the Agreement and to remove the effects of the breach, no later than within 14 days of receipt of the challenge, under pain of termination of the Agreement with immediate effect.
20.2. If there is a change in legal or beneficial ownership or Control over Supplier during the term of the Agreement:
20.2.1. Supplier will promptly notify DPH in writing; and
20.2.2. DPH may, upon receipt of notice or information otherwise regarding a change in legal or beneficial ownership or Control over Supplier, terminate the Agreement immediately by written notice sent to Supplier if it determines in its sole discretion that such change in ownership or Control is detrimental to its interests.
20.3. Notwithstanding the foregoing, DPH shall be entitled to terminate the Agreement at any time for any reason by giving at least one month’s written notice to Supplier.
21. CONSEQUENCES OF TERMINATION
21.1. Within 7 days of termination of the Agreement for any reason, Supplier:
21.1.1. upon DPH’s request and at DPH’s expense, shall deliver to DPH or to another entity as directed by DPH, all quantities of Goods in its possession which Supplier was obligated to deliver as of the date of termination;
21.1.2. at the Supplier’s expense, return to DPH all documents provided to the Supplier by DPH; and
21.1.3. at Supplier’s expense, shall ensure that all materials containing Intellectual Property Rights and/or any information of a technical nature relating to the Goods, the manufacture of the Goods and the provision of the Services or of a confidential nature and provided to Supplier by DPH, are returned to DPH or destroyed by Supplier as determined by DPH.
21.2. Effective upon termination, Supplier shall not exercise or use for any purpose DPH’s Intellectual Property Rights.
21.3. Notwithstanding the fact of termination of the Agreement between the Parties, Supplier shall provide support to DPH regarding any investigation by DPH or any regulatory authority regarding the Goods or Services provided or performed prior to termination.
21.4. Termination or expiration of the Agreement shall not relieve either party of liability or consequences of events occurring prior to such termination or expiration. In the event of termination of the Agreement, DPH agrees to pay the consideration due for the Services or Goods performed or provided to DPH, subject to their compliance with the provisions of the Agreement.
22. TRANSFER OF RIGHTS OR OBLIGATIONS
22.1. The Supplier’s rights or obligations under the Agreement may not be assigned in whole or in part without the prior consent of DPH expressed in its sole discretion and in writing under penalty of nullity.
22.2 All rights and receivables obtained and all obligations and debts incurred by DPH to the Supplier under the Agreement may be assigned to another Delpharm group entity by notice given to the Supplier by DPH, without requiring the consent of the Supplier.
23. FINAL PROVISIONS
23.1. The Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior written or oral agreements and understandings of the Parties with respect thereto.
23.2. Nothing in the Agreement shall establish, or be deemed to establish, any partnership, joint venture or other relationship between the parties other than the contractual relationship expressly provided for in the Agreement.
23.3. If any provision of the Agreement is found to violate mandatory provisions of law, such provision, to the extent that it violates the law, will be treated as null and void, while the Agreement in the remaining part will continue to be fully binding on the Parties. Where necessary to preserve the integrity of the Agreement, the Parties undertake in each such case to negotiate in good faith with a view to replacing the deleted provision with one that reflects the original intentions of the Parties and is drafted in a lawful manner.
23.4. DPH shall be entitled at any time to amend the Terms and Conditions by including the updated version in the current Purchase Order, or by notifying Supplier of the amended Terms and Conditions in the case of a bilaterally signed Agreement.
23.5. The Agreement shall be governed by and construed in accordance with the laws of Poland. The Parties exclude in their entirety the application to the Agreement of the provisions of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980. All references in the content of the Terms and Conditions to specific legal acts refer to the law established in the territory of Poland.
23.6. The Parties irrevocably agree that the Polish courts shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter. Disputes or claims referred to above shall be resolved by a common court with jurisdiction over the registered office of DPH.
23.7. The Terms and Conditions shall apply exclusively to Agreement a concluded by DPH with entrepreneurs within the meaning of Article 43(1) of the Civil Code.
24. ANTI-CORRUPTION CLAUSE
1. Supplier represents (and warrants that none of its officers or directors, persons acting on its behalf or employees, or affiliates, or employees or persons acting on behalf of affiliates) that it is not and will not engage in any practice, conduct, behavior whether by action or omission, that would violate any anti-corruption, anti-bribery or anti-fraud laws applicable in the relevant jurisdiction (including the relevant provisions of the Polish Criminal Code and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions).
2. Supplier has taken appropriate measures, including, in particular, adopting and implementing appropriate internal policies and procedures to combat the violations of law referred to above, in accordance with the national law applicable to its own headquarters.
3. Supplier shall notify DPH immediately upon becoming aware of any offer or attempt that would, if accepted, constitute a violation of the Agreement or any anti-corruption, anti-bribery or fraud laws applicable in the jurisdiction.
4. DPH or any of its outside counsel shall have the right to obtain evidence at any time that Supplier (and each of its officers or supervisors, persons acting on Supplier’s behalf or employees, and Affiliates and employees and persons acting on behalf of Affiliates) is in compliance with the obligations set forth in this DPH’s GTC. Supplier shall for this purpose grant DPH, upon its reasonable request or as a result of a request from a competent authority, access to all of its records, books, archives, financial statements and audit documents.
5. A breach by Supplier (and its officers or supervisors, persons acting on behalf of Supplier or employees, and Affiliates, and employees and persons acting on behalf of affiliates) of its obligations set forth in the DPH’s GTC or a refusal or failure to notify DPH in the case set forth above by Supplier (or its officers or supervisors, persons acting on behalf of Supplier or employees, and affiliates, and employees and persons acting on behalf of affiliates) shall be grounds for termination of the Agreement without notice.
6. Supplier shall indemnify and hold DPH harmless from any and all liability, including incurring any costs or expenses (including defense costs), direct or indirect damages, resulting from any breach of the obligations set forth in DPH’s GTC by Supplier (or its officers or supervisors, persons acting on Supplier’s behalf or employees, and affiliates and employees and persons acting on behalf of affiliates).