Vendor shall not make any changes in the services or materials that may impact ability of the product to meet specified purchase requirements without pre-notification to Ascensia. Unless otherwise agreed in writing by an authorized Ascensia representative, all orders are placed and are deemed to be accepted subject to the following conditions.
These conditions together with any special condition of purchase agreed to in writing by the parties shall constitute the entire agreement between the parties for the supply of the goods (the “Goods”) and any services (the “Services”) and shall supersede any provisions incorporated or referred to in the Seller’s quotation, sales literature, and acknowledgement of order or elsewhere.
1. Orders.
Ascensia will not be bound by any order unless it is placed on Ascensia's official Purchase order form and shall be entitled to cancel any order which is not accepted by the Vendor within seven days from the date of the order form.
2. Price.
The price shall be inclusive of delivery and packaging materials and any expenses incurred, but exclusive of all taxes, duties, royalties or other payments due to Government Authorities or other third parties unless it is expressly agreed in writing that such payments are included in the price.
3. Terms of Payment.
Invoices shall be paid 60 days Net after the receipt date of the respective invoice.
4. Property and Risk.
Title to the Goods shall pass to Ascensia on delivery or, if earlier, on payment for the Goods to the Seller (without prejudice to any right of rejection by Ascensia) and risk in them shall pass to Ascensia upon delivery at the point of delivery stated in the order. Any information (including but not limited to concepts, methodologies, drawings, standards, guidelines, specifications, formulations, and other information or documents) (“Information”) prepared by the Vendor in connection with the manufacture of the Goods and/or supply of the Services or otherwise under instruction from Ascensia shall be the property of Ascensia. The Vendor hereby assigns to Ascensia with full title guarantee all copyright, design right and any other intellectual property rights relating to such Information for no further consideration and subject only to the payment of the price of the relevant Goods and/or Services. The Vendor undertakes to do all further acts as reasonably necessary in order to assign the ownership of such intellectual property rights to Ascensia.
5. Delivery and Performance.
The order is placed on the understanding that deliveries and/or performance will be provided strictly in accordance with Ascensia's requirements as stated in the order or in any agreed delivery or performance schedule and the Vendor accepts that, where specified by Ascensia, time is of the essence. Ascensia reserves the right to refuse acceptance of goods which are supplied in excess of Ascensia’s requirements as stated in the order and Ascensia accepts no liability for such goods. Such excess goods may be returned at the Vendor's risk and expense. For the avoidance of doubt where it is agreed that the Vendor shall unload the Goods on Ascensia's site, such activity will be construed as Services for the purpose of the order. Ascensia shall not be deemed to have accepted any Goods until Ascensia has had a reasonable period to inspect them.
6. Quality and Description.
(a) The Goods shall conform as to quality, description and specification with the particulars specified by Ascensia and shall be of sound materials and workmanship. If the purpose for which the Goods are required has been indicated by Ascensia, either expressly or by implication then the Goods shall be fit for that purpose.
(b) The Vendor warrants that the design, construction, composition and quality of Goods shall comply in all respects with all relevant requirements of any statute, statutory instrument or regulation in forces at the date of delivery, and that the Goods will conform to any trade description applied to them by the seller.
(c) The Vendor further warrants that Services will be performed by appropriately qualified and trained personnel, with due care and diligence and to such high standard of quality as it is reasonable for Ascensia to expect in all the circumstances.
(d) Without prejudice to its other rights Ascensia reserves the right to reject any Goods or Services supplied which fail to comply with the foregoing conditions. Upon notification or rejection by Ascensia rejected Goods shall be returned to the Seller at the Seller’s expense and the Sell shall within time acceptable to Ascensia, at Ascensia’s sole option, either supply replacement Goods or Services in accordance with the order or return the purchase price.
7. Insurance.
The Vendor shall maintain at its own cost a policy of insurance to cover the liability of the Vendor in respect of any act or default for which it may become liable and to indemnify Ascensia under the terms of this Agreement.
8. Indemnity.
The Vendor shall indemnify and keep indemnified Ascensia from and against any and all loss damage or liability (whether criminal or civil) suffered, and legal fees and costs incurred, by Ascensia resulting from breach of the terms of the order by the Seller including, but not limited to:-
(a) Any act or omission of the Seller's employees, agents or subcontractors
(b) Breaches in respect of any matters arising from the supply of Services resulting in any successful claim by Ascensia Diabetes Care Holdings AG Peter Merian Strasse 90 CH-4052 Basel Switzerland
(c) Breach of any warranty given by the Vendor in relation to the Goods or the Services.
(d) Any liability under issuing country appropriate country defined Consumer Protection legislation as enacted from time to time in respect of Goods.
9. Health and Safety.
(a) The Vendor shall take all reasonable precautions to ensure the health and safety of its and Ascensia's employees while on Ascensia's premises and, without prejudice to the generality of the foregoing, shall provide all Health and Safety Data Sheets as may be required to be provided to comply with all statutory requirements.
(b) Ascensia shall not be liable to the Vendor in any civil proceedings brought against the Vendor under any issuing country Health and Safety Regulations as enacted from time to time, where such exclusion of liability is permitted by law.
(c) The Vendor shall indemnify and keep indemnified Ascensia in respect of any liability, monetary penalty or fine in respect of or in connection with the goods or services incurred directly or indirectly by Ascensia under issuing country appropriate legislation as enacted from time to time and/or Regulations, orders, directions or Codes of Practice made there under arising or resulting from the Vendor's default.
10. Cancellation.
(b) Ascensia is entitled to cancel any undelivered or non-performed part of this order forthwith by notice given to the Seller in writing, by fax or email, if the Vendor makes any assignment for the benefit of creditors or if a receiver or administrator is appointed in respect of all or substantially all of the Vendor's property or if the Seller becomes insolvent or goes into liquidation (except for the purposes of amalgamation or reconstruction).
11. Force Majeure.
Either party may totally or partially cancel an order or delay delivery or performance during any period which:-
(b) The need to comply with legislation or reasonably anticipated legislation has the effect of preventing or hindering the free manufacture, sale, delivery, use or supply of the Goods or Services or of materials to be made by Ascensia from or incorporating the Goods.
12. Packing.
The Vendor shall provide suitable containers and/or packing materials for the sale, delivery and reasonable storage of Goods supplied, all such containers and packaging to comply with any requirements in force at the time of delivery. Where it has been agreed that such containers and packing materials are returnable and charged for, their cost is to be credited in full when they are returned. Such return (to the point specified by the Seller) to be at the Seller’s expense.
13. Hazardous Goods.
In addition to providing any Health and Safety Data Sheets which may be required in terms of Clause 9 hereof, the Vendor must ensure that hazardous Goods have prominent and suitable warnings on all containers, packages and documents and such markings shall comply with statutory requirements. Without prejudice to the generality of the foregoing the Vendor will comply with any and all issuing country The c classification, P packaging and L labelling of Dangerous Substances Regulations 1984 and any replacement regulations thereof and, if appropriate, such international Codes of Regulations which may from time to time apply.
14. Non-Assignment.
All orders are placed on the understanding that the Vendor has the capacity to supply the Goods and/or Services. The Vendor shall not sub-contract or assign this order without Ascensia's written consent.
15. Patient Rights.
The Vendor shall indemnify Ascensia against any and all liability, loss, damages and expenses arising out of any Ascensia Diabetes Care Holdings AG Peter Merian Strasse 90 CH-4052 Basel Switzerland in respect of infringement or alleged infringement or any patent, trade mark or registered design or other intellectual property rights resulting from the use of or resale of any Goods or Services.
16. Confidentiality.
(a) The Vendor undertakes on behalf of itself, its employees, agents and sub-contractors (if any) to treat all Information obtained as a result of fulfilling the order regarding the business, products, operations and organization of Ascensia as confidential.
(b) All Information supplied by Ascensia to the Vendor shall remain the exclusive property of Ascensia, but shall be held by the Vendor in safe custody at its own risk and maintained and kept in good condition by the Vendor until returned to Ascensia.
(c) The Vendor shall use the Information referred to in paragraphs 16(a) and (b) above solely for the manufacture of the Goods and/or supply of the Services and shall not copy or make available any such Information to any third party.
17. Safety and Security.
(a) The Vendor undertakes on behalf of itself, its employees, agents and sub-contractors (if any) to comply with all site safety and security instructions notified to it by Ascensia or persons acting on Ascensia's behalf.
(b) Ascensia’s security staff have been instructed to notify all personnel entering our sites of its current security procedures which may result in additional checks being made whilst they are on site. The Seller shall ensure this information is passed to the appropriate staff, subsidiary companies, hauliers etc who need to be made aware of the situation.
18. Local Law.
These terms and conditions and the order generally shall be governed in all respects by Swiss Law and all disputes arising from it shall be subject to the exclusive jurisdiction of the Courts of Basel-City.
