1 – General
1.1 Definitions
“Agreement” shall mean any definitive and binding written document exchanged between the Parties and duly signed and executed by the authorized representatives of both the Parties which includes but not limited to Master Service Agreement or any other document of similar nature.
“Client” shall mean the entity benefiting from the Services, being Boehringer Ingelheim India Private Limited (“BI”) or its subsidiaries, affiliates or group companies, each for its own needs.
“BI Affiliate” shall mean any company or any other corporate entity in which BI, the parent company and the holding company of the BI Group, holds directly or indirectly more than 50% of the share capital or voting rights.
“GTCs” shall mean these General Terms and Conditions.
“Order/s” shall mean all written and signed purchase orders placed by Client with Supplier.
“Services” shall mean all services and associated products and deliverables, if any, provided by Supplier to Client.
“Specifications” shall mean the description of Services and/or associated products and/or deliverables, as further described in an Agreement.
“Supplier” shall mean any person, company or legal entity committed to supply Services to Client pursuant to these GTCs.
1.2 The GTCs apply, in relation to Services provided by Supplier to Client, to (i) offers made by Supplier, (ii) all requests for offers made by Client, and (iv) all Orders.
1.3 These GTCs shall supersede all previous arrangements and understandings between the parties that may appear on Supplier’s invoices, estimates, quotations, shipping forms or any other documentation, which shall apply to the Services.
1.4 No Services shall be delivered by Supplier, and no payment shall be due by Client to Supplier, until and unless Client has issued an Order. Should Supplier start to perform any Order issued by Client, this performance shall imply complete acceptance of these GTCs and Specifications thereunder.
1.5 Notwithstanding anything provided to the contrary, expressed or implied, nothing in these GTCs shall be construed to require Client to order, reach or maintain a minimum level or volume of Services or related goods.
1.6 Unless otherwise agreed in writing between Supplier and Client, Services are performed by Supplier on a non-exclusive basis.
1.7 Supplier shall perform Services in accordance with Agreement and these GTCs, particularly the Specifications under these GTCs. In performing the Services, Supplier shall meet the KPIs and/or SLA required by Client, as defined in an Agreement. In cases where Agreement is not executed between the Parties, the terms of these GTCs and corresponding documents executed subsequent to these GTCs shall prevail.
1.8 The Parties agree that documents under these GTCs shall, to the extent possible, be transmitted electronically. This relates particularly (but not limited) to purchase orders of the Supplier but also to content solutions (for example catalogues, etc.), information, documentation and written results that are provided by the Supplier pursuant to the Agreement. Client shall be entitled to provide reasonable instructions to the Supplier relating to the transmission of documents, in particular to the use of specific internet platforms and software systems, such as SAP Ariba and shall reserve the right to reject any document not delivered in accordance with such instructions. Binding deadlines for the submission of documents are only met if the relevant document was received by the Client in the prescribed form by the deadline.
2 – Orders
2.1 Client is entitled to cancel any Order at any time if Supplier has not returned a signed copy thereof without any modification within five business days from the date on which it was sent by Client.
2.2 For all ordered Services cancelled or postponed by Client (i) over five business days before the planned date of performance of the Services, no indemnity will be due by the Client to Supplier; (ii) less than five business days before the date of the session, Client will pay 25% of the remuneration to Supplier, which sets out Supplier’s sole right to indemnification in this respect.
2.3 For all ordered Services cancelled or postponed by Supplier (i) five business days or more before the planned date of performance of the Services, no indemnity will be due by the Supplier to Client; (ii) less than five business days before the date of performance of the Services, Supplier will pay an indemnity to the Client representing 50% of the remuneration of Supplier. In addition, Supplier shall reimburse Client for its travel and accommodation costs actually incurred in connection with the cancelled or postponed Services.
3 – Personnel of Supplier
3.1 Supplier is fully responsible of the personnel performing the Services, whether hired or employed, and warrants that such personnel have all the qualifications, skills and experience that are necessary to perform the Services.
3.2 Supplier’s personnel performing the Services remain in all circumstances under Supplier’s responsibility, subordination, and hierarchical supervision. Supplier assumes all employer-related social and fiscal responsibilities for its paid personnel and shall exercise all management prerogatives over such personnel (rating, promotion, discipline, etc.).
3.3 The personnel may only be replaced after explicit written approval of Client, except for unexpected and unforeseen circumstances in which Supplier can only temporarily replace the personnel, provided that Client is promptly informed in writing.
3.4 Client is entitled to demand, and Supplier shall comply on first demand, that Supplier replaces personnel performing (any part of) the Services, in the event that Client indicates that this is necessary or desirable for proper performance, and this shall not entail any additional costs for Client.
3.5 Supplier shall ensure that all personnel delivering goods or performing Services to Client shall fully comply with all applicable company rules and security procedures at the premises where the goods are delivered or the services are performed.
3.6 Supplier shall not subcontract all or part of its obligations under the GTCs without Client’s prior written consent, and any case: (1) Supplier shall remain primarily liable to Client for the performance by any subcontractor of its obligations under the GTCs; (2) Supplier shall be solely responsible for payment of any sum due to its subcontractor; and (3) Supplier shall be responsible for compliance with all applicable laws and regulations pertaining to the involvement of such subcontractor in the performance of the GTCs.
4 – Warranties
In addition to any other warranties, express or implied, Supplier represents and warrants that: Services will always be performed in a manner that conforms to the level of professionalism and state of the art which is expected from a first class service provider and that the related goods (including their packaging) and related services thereto (i) conform to the Specifications and approved samples, if any; (ii) are fit and safe for consumer use and suitable for Client’s intended use which Supplier acknowledges it is aware of or for which Supplier has obtained information from Client in writing beforehand; (iii) are free from defects (including but not limited to defaults in design, material and manufacturing); and (iv) comply with all applicable statutory and regulatory requirements.
5 – Term and Termination
GTCs - The GTCs shall become effective on the date on which they are signed by both Parties and shall remain in full force and effect for a non-fixed period. The GTCs can be terminated as specified hereunder. The GTCs can be terminated by either Party at any time for convenience and without any indemnity or other form of compensation being due by the terminating Party to the other, subject to one-month prior written notice. However, the GTCs shall remain in full force until all Orders that are still being performed upon termination of the GTCs, are fully performed, unless otherwise agreed in writing by the Parties.
The Parties waive the right to dissolve the GTCs.
Orders – To the extent permitted by applicable local laws, the Order can be terminated by Client at any time for convenience and without any indemnity or other form of compensation being due by Client to Supplier, subject to one-month prior written notice.
In the event that the Order is agreed for a fixed period, it is agreed and understood that the Order cannot be renewed or extended without the written agreement of both parties. Expiry of the Order cannot give rise to any indemnity or other form of compensation from Client to Supplier.
Should Supplier fail to comply with its contractual obligations under the GTCs, Client shall notify in writing to the Supplier of such non-compliance. An action plan shall be validated between the Parties within eight business days from the notice. If an agreement cannot be reached or if the action plan is not implemented in accordance with the agreed timing, Client may (i) cause a third party of its choice to carry out Supplier’s obligations, at Supplier’s costs, even if such costs exceed the foreseen amount, and without prejudice to Client’s right to receive penalty payments as provided for in the GTCs; and (ii) immediately terminate the GTCs by way of registered mail with acknowledgement of receipt, without any obligation to carry out any further formality or initiate any court proceedings, without prejudice to any other provision of the GTCs and without prejudice to the right to claim additional damages, rights or other remedies to which it may be entitled.
Other termination events – Without prejudice to the above, the GTCs and/or Orders may be terminated by Client (as applicable) if, subject to mandatory provisions of any relevant law, (i) a receiver (or equivalent) is appointed over a substantial proportion of the property or assets of Supplier; or (ii) Supplier makes any voluntary arrangement (or equivalent) with its creditors or becomes subject to an administration order (or equivalent); (iii) Supplier goes into liquidation or ceases, or is likely to cease, to carry on business. Further, both the GTCs and/or Orders may be terminated immediately by Client, without any indemnity or other form of compensation, subject to notification in writing to Supplier, in the event Supplier’s shareholding structure changes, to the extent such modification is for the benefit of a competitor of Client and/or is likely to undermine the commercial, legal or financial interests of Client.
Consequences of termination – In case of termination of the GTCs and/or an Order for any reason whatsoever, Supplier shall, throughout the notice period:
- Continue to perform the Services in accordance with the Agreement and these GTCs and, in particular, at the same pricing conditions which shall remain unchanged until the end of the notice period;
- Provide Client, in addition to the performance of all Services, all reversibility services, to the extent reasonably required by Client, in order to ensure a smooth and efficient transfer to the new service provider selected by Client;
- Assist Client and its new service provider, as may be reasonably required by Client, in order to enable the new service provider to properly perform the Services; and
- Communicate to Client, on a format to be agreed by the Parties, the whole documentation pertaining to the Services that belongs to Client (including, to the extent relevant, user manual, installation and exploitation documents, technical and functional specifications, and deliverables).
6 – Prices, Fees, Costs and Payment
6.1 All prices and fees are set forth in this GTCs. Agreed prices and/or fees are fixed and irrevocable. A price or fee (including costs and disbursements) accepted by Client may not be modified or increased without Client's prior written approval.
6.2 All prices shall be net, excluding applicable tax, unless agreed otherwise in writing by the Parties.
6.3 All costs and charges in respect of taxes and social security charges and penalties related to the Services and related goods are for account of Supplier, with the exception of GST or other applicable tax, unless agreed otherwise in writing by the Parties. Supplier shall indemnify Client and holds them harmless from any of such costs and charges.
6.4 Unless otherwise agreed in writing in the Order, Supplier shall bear all of its third party costs and expenses (including accommodation and travel costs) incurred while performing the Services. Supplier shall be responsible for the payment of all these costs and expenses to these third parties. In the event that the parties agree in the Order that Client will reimburse Supplier for these costs, the following shall apply: (1) the costs must be approved by Client in writing before they are incurred by Supplier; (2) the costs will be reimbursed by Client to Supplier on the basis, and within the limits, of Client’s Travel Policy; (3) Supplier must provide Client with the corresponding documentary evidence (invoice, receipts, etc.) before charging the costs back to Client.
6.5 Supplier shall maintain records in respect of all costs and charges reimbursed by Client under the GTCs. Client reserves the right to audit these records by its own internal auditor, or third party auditor, for the sole purpose of verifying that Client has not been overcharged.
6.6 Client shall pay invoices within thirty calendar days following the end of the month + two business days on which the invoice was received, provided it is correct, undisputed and contains all details and documents required by Client.
7 – Delay
7.1 If there is an imminent delay in the performance of Services or delivery of goods, Supplier shall promptly notify Client in writing, stating the reason and consequences of the imminent delay, in addition to measures it shall take to restrict the delay and prevent such delay in the future. Client may inform Supplier whether the proposed measures are acceptable to Client, which will not in any way imply acceptance of the delay and is without prejudice to any other rights and remedies available to Client.
8 – Delivery and Acceptance
8.1 The prices for goods related to Services, if any, shall be based on Delivered Duty Paid (“DDP” – Incoterms 2010) at the location specified by Client, including all costs of packaging, unless otherwise agreed in writing.
8.2 The timely and proper performance of Services and delivery of related goods is of the essence. Supplier shall strictly adhere to agreed-upon time milestones and time schedules.
8.3 Supplier shall notify Client prior to delivery of the goods or (results of) the performance of Services.
8.4 The (results of) performed Services require Client’s acceptance in writing, confirming that the requirements of the GTCs are met.
9 – Intellectual Property Rights
9.1 Each party shall remain the owner of all intellectual property rights owned by it prior to its relationship with the other party or created outside the scope, and independently, of that relationship. All rights of intellectual property supplied by a party, including without limitation, rights of literary and artistic property, trademarks, design and model rights, patent or other rights of equivalent nature used for the purpose of performing the GTCs, are the exclusive property of that party and the other party does not acquire (nor does any third party), by its activity or the performance of its obligations under the GTCs, any ownership or any license or any other right whatsoever on these intellectual property rights.
9.2 The Supplier shall not use Client’s intellectual property rights, including BI’s name or a BI Affiliate name and/or any of any intellectual property right pertaining to any Client product, in any internal or external publication or any advertisement, without Client’s prior written consent.
9.3 Supplier warrants that the Services do not constitute an infringement of any intellectual property rights or any other proprietary right of any third party in all territories concerned.
9.4 All results (i.e. all intellectual property rights, materials and data generated during the performance of the Services) - whether partial, provisional or final - related to the Services shall be the exclusive ownership of Client as soon as they are created, for the entire duration of the legal protection pertaining to the rights attached to those results. Supplier will provide assistance in any actions that Client may reasonably consider necessary to effectuate the transfer of the aforementioned ownership. Supplier shall indemnify and hold Client and its customers harmless from and against all claims and lawsuits (including legal fees/costs and replacement costs) from third parties for infringement of intellectual property rights or based on unfair competition resulting from the possession and/or use of the goods and Services by Client.
10 – Default
10.1 If (any part of) the goods delivered or Services performed do not conform to the GTCs, Client is entitled to require Supplier to immediately repair or replace the delivered goods or to supply the missing components or to duly remedy the Services, within a reasonable period to be determined by Client, without prejudice to any other rights and remedies available to Client.
10.2 In the event Client informs Supplier that it is not performing the Services in accordance with the GTCs, Supplier shall promptly report in writing to Client of the measures (which shall be) taken in order for the Services to be performed accordingly and to avoid any such reoccurrence in the future.
10.3 Acceptance by Client of (any part of) the delivered goods or (results of) performed Services shall not be deemed as a waiver of any rights or remedies by Client.
10.4 Any advice or notice provided by Client to Supplier with regard to the delivered goods or (results of) performed Services, shall not release Supplier in any way from its responsibility or liability with respect to the proper fulfilment of its obligations under the GTCs.
11 – Liability and Indemnification
11.1 Supplier shall be liable for every claim for damage resulting directly or indirectly from or related to Supplier's non-performance of the GTCs, its failure to perform the GTCs timely or properly or its breach of any contractual or non-contractual obligation vis-à-vis Client or third parties.
11.2 In addition, Supplier shall indemnify Client against any claim from third parties resulting in respect damage resulting directly or indirectly from or related to the Supplier’s non-performance of the GTCs, its failure to perform the GTCs timely or properly or its breach of any contractual or non-contractual obligation vis-à-vis Client or third parties. Supplier guarantees the fulfilment of obligations by third parties on Supplier's part (such as employees of Supplier or third parties or their employees hired directly or indirectly by Supplier) in the same way as it guarantees the fulfilment of its own obligations.
11.3 If the delivered goods or performed Services cause a product of Client or a BI Affiliate to be defective under applicable product laws and regulations, then Supplier shall indemnify, defend and hold harmless Client and the BI Affiliates with respect to all product liability claims or demands resulting thereof.
11.4 For the avoidance of doubt, no limitation of liability whatsoever shall apply in case of Supplier’s fraud, intentional breach, gross negligence or bodily injury.
11.5 Supplier guarantees that its insurance coverage shall remain valid as long as the GTCs is in force.
12 – Force Majeure
Neither party shall be responsible for a failure to perform its obligations under the GTCs if such failure is due to a force majeure event, with the understanding that transport problems, illness, strikes, raw materials shortage, breach of GTCs by third parties contracted by Supplier or a stagnation in Supplier’s business shall not be considered force majeure events. Client is entitled to terminate the GTCs at no cost if a force majeure event continues or is likely to continue beyond fifteen calendar days, without any indemnification or other form of compensation.
13 – Confidentiality
13.1 All information provided by the disclosing party under the GTCs shall be treated as confidential by the receiving party and shall be used by the receiving party only for the purposes of the GTCs. The existence and the terms of the GTCs shall be treated as confidential by Supplier.
13.2 All rights and information used for the performance of the GTCs may only be disclosed to a third party after having obtained the written consent of the party that is the owner of the relevant information and provided that a written confidentiality undertaking has been obtained from the third party prior to any disclosure.
13.3 Upon termination of the GTCs, each party shall promptly return to the disclosing party all documents and materials received from it.
13.4 Neither party shall make public statements, declarations, advertising, press release or any other divulgation to third parties about the GTCs or its subject matter without the other party’s prior written consent. In particular, the Supplier shall not make any public statement, communication or press release relating to the Agreement or its relationship with Client. In particular, in case of Crisis or Incident as defined below in this Article:
- The Supplier shall not make any public statement, communication or press release, without Client’s prior written consent;
- Any public statement or communication or press release relating to the Crisis or Incident or generally the relationship with Client, must be approved in writing by Client before it is made public.
14. Compliance with laws
The highest standards of ethical, moral and lawful conduct are expected from our suppliers. In particular, we expect our suppliers, their agents and their contractors, to be familiar with and comply with all legal and contractual obligations relating to their business activities, and we will not accept and conduct (including by omission) that it is unlawful or that violates such obligations. Further, we prohibit the offer or receipt of gifts, hospitality or expenses whenever such arrangements could affect the outcome of business transactions and are not reasonable.
Conflict of Interest
Supplier represents to BI that it is not a party to any agreement, which would prevent it from fulfilling its obligations under this Agreement and that during the term of this GTCs, Supplier agrees that it will not enter into any agreement to provide services, which would in any way prevent it from providing the services contemplated under this GTCs.
Data Protection Laws
Supplier agrees to comply with the Data Privacy regulation issued under The Information Technology Act, 2000 and notified by Government of India.
15. Governing Law & Jurisdiction
GTCs shall be governed by, interpreted and construed in accordance with the laws of India. The courts of Mumbai will have exclusive jurisdiction to adjudicate any claim or action brought by one of the parties hereto in connection with this GTCs and the parties hereto irrevocably consent to the exclusive jurisdiction of such courts.
16. Supplier Code of Conduct
The Supplier shall reasonably take efforts to follow the principles given in the “Suppliers Code of Conduct”.
16.1 The Supplier will comply with commonly accepted fundamental principles of corporate responsibility and integrity, human rights, working standards as laid down in BI's Supplier 'Code of Conduct' which could be found under: https://www.boehringer-ingelheim.com/in/.
17. If there is any inconsistency between terms and conditions of Agreement and these GTCs, it shall have precedence as follows (unless expressly agreed otherwise): (a) the Agreement and any other annexes to the Agreement (b) these General Terms and Conditions, (c) the applicable statement of work and any annexes thereto (d) oral discussions or email communication.