GENERAL TERMS AND CONDITIONS OF SUPPLY (Last update December 2020)
1. The following terms and conditions of Pharmalutions Pte Ltd (Pharmalutions) apply to all present and future business relations between us and
- Persons exercising their commercial or independent professional activities (business operators) and - Legal persons governed by public law and special funds under public law.
2. All tender submissions, deliveries and services are made exclusively on the basis of the following terms and conditions. Any conflicting terms and conditions of the customer are invalid.
3. A contract is concluded – in the absence of any special agreement – when Pharmalutions issues a written order confirmation.
4. Legally relevant statements and other agreements require the written form to be considered effective.
1. The prices are quoted net ex works (EXW) as per INCOTERMS 2010. These prices do not include the legally applicable sales tax, packaging, freight, customs, insurance and assembly. Pharmalutions is bound to tenders and tender prices for three months, unless otherwise stated.
2. The offered price is only valid for a total award of the deliveries and services offered. We reserve the right to change prices for partial awards or partial deliveries.
3. The offered price for services such as project planning, drawings, assembly, maintenance, documentation and commissioning refers – in the absence of any other agreement – solely to the devices delivered by Pharmalutions within the scope of the contract relationship.
4. Pharmalutions is entitled to issue an invoice on the day of delivery and, for advance invoices, on the day the goods are ordered. The contractually agreed payment terms apply in general. Otherwise the invoice amount must be paid within 30 days without deductions. Software products and components are only delivered against payment in advance or payment on delivery. Repair, customer service and other wage-related invoices or parts of invoices must be paid immediately upon receipt of invoice without any deductions.
5. A payment is only considered rendered when the funds are made available to Pharmalutions. In the case of checks, payment is considered rendered when the check is cashed. Payment orders, checks and bills of exchange are only accepted upon special agreement and only for payment, not in lieu of fulfilment.
6. In the event of a delay in payment, default interest in the amount of 8% above the base interest rate will be charged subject to the reservation of further damages. If the customer delays fulfilment of its obligations – including those arising from other contracts with Pharmalutions – or if the customer suspends payments or is otherwise in breach of contract, then all claims vis-à-vis the customer are due immediately and without any deductions.
7. After exceeding the payment deadlines, the customer is no longer entitled to further process, join or combine with other objects the goods supplied by Pharmalutions under retention of title.
8. Pharmalutions is also entitled to request the return and take possession of retained goods free of charge, to deliver outstanding deliveries only against advance payment and to enforce its legal rights to claim for delays. Enforcement of the right of retention and the seizure of the supplied goods by Pharmalutions do not constitute withdrawal from the contract unless this is expressly declared in writing.
9. Customers who are not listed with Pharmalutions and have not provided proof of creditworthiness will only receive delivery against advance payment; for large orders, Pharmalutions reserves the right to request a deposit or the provision of a security.
10. The application for initiation of insolvency proceedings authorizes Pharmalutions to withdraw from the contract and demand the immediate return of the delivered goods.
11. Partial deliveries and services may be invoiced separately.
12. The customer is only entitled to retain payment or offset payment with counterclaims if such claims are undisputed or adjudged.
III. INDUSTRIAL RIGHTS
1. Pharmalutions reserves the rights of ownership and copyright to cost estimates, drawings and other documents.
2. The documents may only be made accessible to third parties after prior consent from Pharmalutions and must be returned immediately on request if Pharmalutions is not awarded the contract.
1. Goods are delivered ex works at the customer’s expense and risk.
2. This also applies to partial deliveries, to which Pharmalutions is entitled provided it is reasonable to expect the customer to accept these.
3. Packaging is considered to be correct and proof thereof supplied as long as the goods are accepted by the shipper or freight forwarder without any objections.
4. The customer may not refuse acceptance of deliveries due to minor defects.
5. To the extent that the Packaging Ordinance requires Pharmalutions to accept returned packaging used for transport and the customer requests this, the customer shall bear the costs for the return transport of the packaging used.
6. If Pharmalutions accepts the return of the correctly delivered goods, then Pharmalutions is entitled to invoice the customer for an appropriate administration fee for the expenditure incurred.
7. The delivery times indicated are non-binding and Pharmalutions will make every effort to comply with them. In order to be considered binding, delivery dates or deadlines must be expressly agreed to as such.
8. Compliance with deadlines for deliveries is subject to the timely receipt of all documents to be delivered by the customer, all necessary approvals and releases, in particular plans, and compliance with the agreed payment terms and other obligations by the customer. If these prerequisites are not fulfilled on time, then the deadlines shall be extended accordingly; this does not apply in cases where Pharmalutions is responsible for the delay.
9. If non-compliance with deadlines is the result of force majeure, e.g. mobilization, war, unrest or other similar events, e.g. strikes, blockades, then the deadlines shall be extended accordingly.
10. If Pharmalutions is in default, then the customer – provided it can offer sufficient proof that it sustained damages as a result of said default – may demand compensation of 0.5% for each complete week of the delay, but not more than 5% in total of the price for the part of the deliveries that could not be effectively put into operation because of the delay.
11. Both the customer’s claims for damages due to delayed deliveries and claims for damages in lieu of performance exceeding the limits specified in No. 3 above are excluded in all cases of delayed delivery and following expiry of any delivery deadline set by Pharmalutions. This does not apply to the extent that liability is mandatory in cases of intent, gross negligence or due to injury to life, limb or health. The customer may only withdraw from the contract within the framework of the legal provisions provided that Pharmalutions is responsible for the delivery delay. A change in the burden of proof to the customer’s disadvantage is not associated with the provisions outlined above.
12. At the request of Pharmalutions and within a reasonable period of time, the customer is obliged to declare whether it will withdraw from the contract as a result of the delay or if it insists on delivery.
13. If shipping or delivery is delayed at the request of the customer by more than one month following notification of readiness for shipment, then Pharmalutions may charge the customer a storage fee of 0.5% of the price of the delivery items, but not more than 5% in total. The contract parties are free to provide proof of higher or lower storage costs.
V. INSTALLATION / ASSEMBLY / COMMISSIONING
1. The customer must perform the installation and assembly at its own expense and in due time:
- All ground, construction and other ancillary work including all necessary skilled and unskilled labour, construction materials and tools,
- The equipment and materials required for assembly, such as scaffolding, lifting gear and other equipment, fuels and lubricants,
- Energy and water at the point of use including connections, heating and lighting,
- At the assembly site, for the storage of machine parts, apparatuses, materials, tools, etc., adequately sized, suitable dry and lockable premises and for the assembly personnel suitable work and break room facilities including sanitary facilities appropriate to the circumstances; for the remainder the customer must take all measures at the construction site required to protect Pharmalutions’ possessions and the assembly personnel at the construction site as it would for its own possessions,
- Protective clothing and protective equipment required as a result of the special circumstances at the assembly site.
2. Before beginning the assembly work, the Customer must provide the necessary information on the location of any covered power, gas and water lines or similar installations along with the required static data without being requested to do so.
3. Before beginning installation or assembly, all of the materials and objects required to commence work must be located at the installation or assembly site and all preliminary work required prior to starting installation must be far enough along to allow for the installation or assembly to begin in accordance with the contract and to be continued without interruption. Access roads and the installation or assembly site must be leveled and cleared.
4. If installation, assembly or commissioning is delayed due to circumstances beyond Pharmalutions’ control, then the customer shall bear a reasonable amount of the costs incurred for waiting periods and any additional travel required by Pharmalutions or assembly personnel.
5. The customer must inform Pharmalutions of the duration of the work to be performed by the assembly personnel and certify the end of the installation, assembly or commissioning without delay.
6. If Pharmalutions requests acceptance of the delivery following completion, then the Customer must provide this within a period of two weeks. If this does not occur, then acceptance is considered effected. Acceptance is likewise considered effected if the delivery – including after completion of an agreed test phase – is put into operation.
7. If Pharmalutions is responsible for commissioning control systems, then the required operating materials (media) must be provided in the necessary amounts. Pharmalutions must be provided with notice of commissioning in due time. Customer employees who are familiar with the system must be on hand during the commissioning phase. The customer must ensure that the devices to be commissioned are accessible. If device assembly and installation is not included in Pharmalutions’ scope of contract, then the customer must ensure that field devices are wired and assembled and that all control panel devices are connected.
VI. RETENTION OF TITLE
1. All goods remain the property of Pharmalutions until all obligations arising from the business relationship, regardless of their nature, are met in full. This applies in particular to subsequent claims arising from repair services, spare parts and accessory deliveries.
2. The customer is authorized to resell and/or process the goods covered under the retention of title in the ordinary course of business. In this case, the following supplemental provisions apply.
3. The retention of title clause covers products resulting from the processing, mixing or combining of our goods at their full value, whereby we are considered the manufacturer. If, when processing, mixing or combining our goods with those of third parties, the ownership rights of the third parties are retained, then we also acquire joint ownership of the processed, mixed or combined goods according to the share of the invoiced amounts. For the remainder, the same provisions apply to the resulting product as for the goods delivered under the retention of title provision.
4. The customer hereby assigns to us as any claims against third parties arising from the resale of the goods and the resulting product in full or in the amount of our co-ownership share by way of security in accordance with the preceding paragraph. We hereby accept this assignment.
5. Both Pharmalutions and the customer remain authorized to recover the debt. We hereby agree not to collect said debt as long as the customer meets its payment obligations to us, does not delay payment, does not initiate insolvency proceedings and there are no other shortcomings in its performance capability. Should this be the case however, we may demand that the customer make all assigned demands and their debtors known, provide us with all information and documentation relevant to collecting the debt and inform the debtors (third parties) of the assignment of the debt.
6. If the realizable value of the securities exceeds our claims by more than 20%, then we will release securities of our choosing at the customer’s request.
7. As long as our retention of title exists, renting, pledging, transferring security or any similar transfer of goods to a third party is not permitted without our written consent.
8. In cases where the customer’s creditors intervene, in particular in cases where the goods are pledged, the customer must notify us of this immediately by registered letter and bear the costs of any measures required to rectify the intervention, in particular by bearing the costs of intervention processes if they cannot be recovered from the counterparty. To secure our claims, the customer grants us the right to enter its business premises during normal business hours and to inspect the business documents required to secure our claims.
9. The customer is obliged for the duration of the retention of title to keep the goods in proper condition and have any necessary repairs performed immediately at its own expense.
VII. RIGHTS IN THE EVENT OF PERFORMANCE / LIABILITY DEFECTS
1. Pharmalutions will, at its own discretion, either repair or redeliver the parts deemed to be defective as a result of circumstances arising prior to the transfer or risk. The customer must give Pharmalutions the necessary time and opportunity to remedy the situation and, at its own expense, ensure that Pharmalutions has unrestricted access to the defective parts so that it is possible to inspect and repair them. Only in urgent cases of danger of operational safety or prevention of disproportionately large damages is the customer authorized to undertake these repairs itself. In any event, Pharmalutions must be informed immediately of these circumstances. Following such actions, Pharmalutions will not be held responsible for any defective wiring, improper handling and assembly that it did not carry out itself. The customer must notify Pharmalutions of any defects it detects immediately in writing; replaced parts shall become the property of Pharmalutions.
2. Pharmalutions shall bear the costs arising from repair and/or redelivery – to the extent that the complaint proves to be founded – for the replacement goods along with shipping including reasonable costs of removal and installation. All other costs are borne by the customer.
3. Unless otherwise stipulated in these terms and conditions including the following provisions, we are liable in accordance with the relevant statutory provisions in the event of a breach of contractual and non-contractual obligations.
4. We are liable for compensation for damages – regardless of the legal grounds – in cases of intent and gross negligence.
In cases of minor negligence, we are only liable
- For injury to life, limb or health,
- For damages resulting from a breach of a material contractual obligation (obligation whose fulfilment makes proper execution of the contract possible in the first place and compliance with which the contract partner readily relies and can readily rely on); in this instance, however, our liability is limited to compensation for foreseeable, typically occurring damage.
5. The aforementioned liability limitations do not apply in cases where we fraudulently conceal a defect or have taken over a guarantee for the condition of the goods. The same applies to claims of the customer under product liability law.
6. To the extent that our liability is excluded or limited, this also applies to employees, representatives and agents.
7. All claims of the customer are subject to a limitation period of twelve months. The legal limitation periods apply to intentional, fraudulent behaviour and in case of claims arising from product liability law. These also apply to defects in buildings and delivery items that were used in accordance with normal guidelines for a building and caused the defect to arise in the first place. Pharmalutions and the customer hereby agree that the IT components included in the delivery items are not considered to be used for a building in accordance with their normal use, even if they control the building management system.
VIII. IMPOSSIBILITY OF PERFORMANCE; CONTRACT ADJUSTMENTS
1. Should any unforeseeable events (including but not limited to operating malfunctions, delays in the delivery of essential materials, the effects of labor disputes, government interventions, strikes) significantly modify or interfere with the economic meaning or contents of the delivery or Pharmalutions operations, then the contract shall be appropriately adjusted in good faith.
2. If, from an economic standpoint, it would not be reasonable to do so, then Pharmalutions is entitled to withdraw from the contract. Should Pharmalutions wish to make use of this right of withdrawal, then the customer must be notified of this recognizing the implications of the event, even if the delivery period was initially extended in agreement with the customer.
IX. USE OF SOFTWARE
1. If software is included in the scope of delivery, then the customer will receive a single, non-exclusive right of use to said software including its documentation.
2. The customer is only authorized to use the software on the delivery item supplied specifically for this purpose. Use on any other system is prohibited and requires an additional agreement.
3. The customer may only reproduce, revise or translate the software or transfer object code into source code to the extent legally permitted (Copyright Act).
4. The software may only be linked with other software following an express agreement with Pharmalutions. The customer agrees to compel any legal successor to recognize the conditions of use. Granting sublicenses is not permitted.
5. All other rights to software and documentation, in particular ownership rights, remain with Pharmalutions.
6. The customer has a non-exclusive right to use the software with the agreed performance features in unaltered form on the agreed devices. The customer may create a backup copy without express agreement.
7. Pharmalutions is authorized to update the software at its own discretion, but is not obliged to offer the customer these updates. If a software maintenance contract was concluded, then the updated software is an object of the same. However, new functions and performance features must be ordered and remunerated separately.
8. Although Pharmalutions selects the software with the greatest possible diligence and care, it is not always to possible exclude the risk of errors based on the current state of the art. Pharmalutions is liable in accordance with VII of these terms and conditions for any reproducible errors that occur. If reproducible errors cannot be corrected and the software is thus rendered unusable, the customer will afford Pharmalutions the necessary time and opportunity to attempt to develop a modified version of the software based on the written error report provided by the customer.
9. Any liability for the software’s suitability for use outside of the contractually agreed technical control application scenarios is excluded.
X. FINAL PROVISIONS
1. The applicable laws of the Republic of Singapore for legal relations among domestic parties apply exclusively to all legal relations between Pharmalutions and the customer.
2. The venue of jurisdiction is the court that officially presides over the district in which Pharmalutions is located. However, Pharmalutions is entitled to file a lawsuit at the customer’s place of business. The place of performance for both parties is the seat of Pharmalutions.
3. If one provision in these terms and conditions or a provision made in the scope of any other agreements should be or become invalid, then this shall not affect the validity of any of the remaining provisions or agreements. The completely or partially ineffective provision will then be replaced by a provision that most closely approximates the economic purpose of the invalid provision.