General Purchase, Order and Service Contract Terms and Conditions of Geistlich Pharma AG of April 1, 2020

1.    Conclusion of agreements

1.1    Geistlich Pharma AG (hereinafter referred to as Geistlich) only recognizes written orders (purchase orders and orders for work to be carried out) and contracts. The order or contract number must be noted on the invoice.

1.2    Orders and contracts from Geistlich are generally transmitted electronically to the supplier or contractor (hereinafter the service provider) .

1.3    Orders or contracts that are not rejected within five working days are deemed to have been tacitly accepted.

1.4    The General Purchase, Order and Service Contract Terms and Conditions of April 1, 2020 applies to all orders and contracts from Geistlich. Other terms and conditions apply only if expressly recognized in writing by Geistlich as amendments or additions. 

1.5    Any change to the object of the agreement compared with previous deliveries or information must be notified to Geistlich immediately in writing. The change entitles Geistlich to change the order or contract or to withdraw. If, in the event of the object of the agreement being amended, performance or a contract or work has already commenced without Geistlich being informed, the service provider will not be compensated for any work already performed.

1.6    Orders and contracts must as a general rule be confirmed within 5 working days of the order date.

1.7    These Purchase, Order and Service Contract Terms and Conditions also apply to all future deliveries and services provided by the service provider to the buyer until such time as new purchase and order terms and conditions are applicable.

1.8    All orders and contracts must comply with the quality agreements, testing methods and test values agreed between the service provider and Geistlich. 

2.    Prices and payment

2.1    In the absence of any agreement to the contrary, the prices stated are fixed prices and include all costs up to the place of performance/up to fulfillment.

2.2    Any taxes (VAT) must be detailed separately.

2.3    In the absence of any arrangement to the contrary, payment will only be made after the delivery or service has been received or accepted at its destination or place of performance, the invoice has been issued complete with the Geistlich order number and all of the contractually required documents have been received. Payment will be made within 14 days, in which case a 2% discount applies, or on a 30 days net basis.

2.4    The fact that payment is made does not represent acknowledgment of the terms and conditions or prices. The timing of the payment has no effect on the supplier’s liability for faults or on the right to make a complaint.

3.  Drawings, specifications, models, materials

3.1    Drawings, specifications, models and materials that Geistlich makes available to the service provider remain the property of Geistlich. The service provider may only use these with Geistlich’s permission.

3.2    Such items may not be made available to third parties without Geistlich’s written consent.

3.3    Any designs, the results of design or development work and other creative services created by the service provider specifically for Geistlich will be invoiced separately, subject to any arrangements to the contrary, with full ownership therefore being transferred to Geistlich upon payment.

3.4    Any tools etc. made specifically for Geistlich may not be used for third customers without Geistlich’s written consent regardless of who bore the costs for them.

3.5    Goods or products produced on the basis of Geistlich’s formulations, models, drawings etc. may not be supplied to third parties without Geistlich's written permission, even if the models or packaging were developed in cooperation with the suppliers.

4.   Subsuppliers and subcontractors

4.1    The service provider is liable for its subsuppliers and subcontractors in the same way as for itself.

4.2    If the service provider intends using third parties for the production of goods ordered from it or for the performance of services, it must obtain Geistlich’s consent no later than upon the award of the contract.

5.   Terms of performance

5.1    The place of performance is the delivery location or location at which the service is typically mainly to be performed ad as detailed in the order or contract.

5.2    The agreed form of transport must be guaranteed.

5.3    The benefit and risk pass to Geistlich in accordance with the agreed INCOTERMS (ICC official rules for the interpretation of trade terms). Unless other INCOTERMS have been agreed, DDP (Delivered Duty Paid) applies.

5.4    The service provider must pack the contractual product in such a way that damage during transportation is avoided. The buyer’s order number and item number, if available, must be noted on the packaging.

5.5    With regard to the creation of a work, the service provider bears the costs associated with any materials, auxiliary materials, tools and equipment needed to create the work in the absence of any express arrangement to the contrary.

6.    Performance deadline, delayed performance and contractual penalty

6.1    The stated delivery dates are understood as referring to the dates of arrival at the delivery location. The performance dates referred to in a contract or service contract are understood as referring to the dates on which the service contract is due to end or the work is due to be completed.

6.2    The INCOTERMS (ICC official rules for the interpretation of trade terms), as last amended, agreed in each individual case additionally apply. Unless other INCOTERMS have been agreed, DDP (Delivered Duty Paid) applies.

6.3    The delivery/performance dates stated are fixed dates as defined in Article 108 point 3 of the Swiss Code of Obligations (OR), which means that default occurs without the need for a reminder.

6.4    The service provider undertakes to inform Geistlich in writing immediately of any circumstances that have already occurred or look likely to occur and that will result in the agreed dates not being met.

6.5    In the event of culpable default on the part of the service provider, Geistlich may demand a contractual penalty of 1% of the net contract value for every commenced working week of the delay, subject however to a total limit of 8% of the contract value according to the final invoice. The right to assert further statutory claims remains unaffected.

7.    Warranty

7.1    By accepting the order or contract, the service provider is confirming that its product complies with the relevant Swiss or EU rules and/or that it is authorized under such rules to perform the service. The service provider declares its willingness to provide the required declarations of compliance and other documents in sufficient number at its expense. The service provider is willing to grant Geistlich access at any time to its documentation on risk analysis and its safety concept regarding the item for delivery/service to be performed.

7.2    The supplier is liable for the faultless condition and suitability of its delivery or service for the standard intended purpose as known to the supplier. The service provider is liable for careful performance of the service and is liable during the creation of a work for the same degree of care as employed members of staff.

7.3    Use of the delivery may not breach any real or other third-party rights.

7.4    Geistlich is not obliged to carry out any checks for faults, including on a sample basis, of the suppliers’ delivery upon its receipt.

7.5    Approval of a work by Geistlich must always be given expressly and in writing. Tacit authorizations are excluded. Geistlich will check the works as soon as this is feasible in accordance with normal operations and in specific individual cases.

7.6    The warranty period is 24 months as of the acceptance of the delivery. In the event of a full exchange under the guarantee, the warranty period will start anew. Notice of defects may be given during the warranty period at any time and regardless of when these were detected.

8.    Non-performance or defective performance

8.1    In the event of delayed performance (point 6.1. – 6.5.) or a warranty claim (point 7.1. – 7.5.) or any other breach of the Agreement or the general Purchase, Order and Service Contract Terms and Conditions, Geistlich may freely choose whether to cancel the Agreement (rescission), to reduce the price (reduction), or to demand the delivery of other appropriate goods for the order or performance of the order or service contract by a third party. In the case of service contracts, Geistlich may alternatively request that the faulty goods be improved free of charge in the first instance.

8.2    In all cases, Geistlich may demand compensation for damages caused directly or indirectly by non-performance or incorrect performance.

9.    Product liability

9.1    The service provider undertakes to arrange sufficient product liability insurance cover for itself.

9.2    The service provider undertakes to inform Geistlich immediately in writing of any problems that arise in relation to its product. 

9.3    The service provider undertakes to guarantee Geistlich the required information and access to information at its own cost and to contribute financially and in the form of personnel to the resolution of the problem after consultation with Geistlich. If access to information is provided, Geistlich will protect the supplier’s commercial secrets.

9.4    Resolving the problem may result in consequential damages for people, the environment and things.

9.5    The service provider will also be liable for consequential damages insofar as there is a causal relationship between the damage and a fault with the goods supplied by the service provider.

10.  Secrecy 

10.1 The service provider must not disclose information about Geistlich that it acquires or the existence of the existing commercial relationship to third parties or otherwise publicize such information. Insofar as Geistlich has consented to orders being passed to third parties, such parties must be subject to the same obligations in writing.

10.2  The terms of any secrecy agreement signed by the parties take precedence over these provisions.

11.   Applicable law, place of jurisdiction

11.1 Substantive Swiss law applies with exclusion of the conflict of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods (CISG).

11.2 The place of jurisdiction is 6000 Lucerne, Switzerland.