Last Revised: July 2022
General Purchase Conditions of Roche Diabetes Care Nederland BV and Roche Diagnostics Nederland BV referred to in these conditions as "Roche".
General Terms and Conditions
1 Applicability
1.1 All requests for an offer made by Roche, all offers made by Roche, all assignments and orders, by means of a confirmation of the offer or otherwise, issued by Roche and all contracts concluded with Roche for the provision of services, including contracting, or the sale and delivery of goods by the other party, are governed exclusively by these General Purchase Conditions.
1.2 The applicability of conditions of Roche’s other party is hereby rejected expressly. Deviating stipulations and any general terms and conditions applied by the other party apply only and in so far as these have been accepted by Roche expressly and in writing for each individual case.
1.3 Other parties with which Roche has contracted once subject to the present General Purchase Conditions agrees to the applicability of these General Purchase Conditions to later agreements between itself and Roche, without such having to be agreed expressly each time.
1.4 Roche has the right to change these General Terms and Conditions unilaterally. Such changes will only have legal effect between Roche and the other party, also with respect to existing agreements and enter into effect 30 calendar days after announcement of such changes by their filing with the Chamber of Commerce or, in case of existing agreements, by their notification to the other party. In case Roche applies a material, interim change to the General Purchase Conditions, the other party will have the right to inform Roche within 14 calendar days after the aforementioned notification and by means of a registered letter with acknowledgement of delivery that it wishes to terminate the agreement prematurely effective as from the moment the amended General Purchase Conditions enter into effect if the change also applies to it. Roche has the right to inform the other party within at most 10 calendar days after timely receipt of the aforementioned letter that it is willing to continue the agreement on the basis of the unamended conditions. If this is the case, the change will not apply to the other party and the agreement will be continued on the basis of the unamended conditions. In the event Roche exercises the above mentioned right, the agreement with the other party in question will end automatically as from the effective date of the amended general terms and conditions.
2 Conclusion of the agreement
2.1 All offers made by the other party are irrevocable. All costs to be incurred by the other party within the context of an offer are for its account.
2.2 The agreement is not concluded unless and in so far as Roche accepts an offer by issuing a written order.
2.3 Oral commitments made by and oral arrangements with its employees or representatives do not bind Roche until after and in so far as these have been confirmed in writing.
2.4 Roche is not bound by changes to the agreement that are indicated by the other party after conclusion of the agreement.
2.5 Additional work is only allowed and may only be charged if Roche has issued a separate written order for that additional work.
2.6 The other party is obliged to implement at Roche’s written request all (i) changes to the design and specifications of the goods and all materials that belong or that are related thereto and/or (ii) changes to the performance of the agreement, requested by Roche, provided this is not impossible from a technical or other perspective. If and in so far as the other party considers that a technical or other impossibility exists, it will be obliged to inform Roche thereof within five days after dispatch of Roche’s written request.
2.7 Changes and/or adjustments as referred to in paragraph 6 of this article will not result in an increase of the price or a delay in the delivery or performance of the agreement and do not affect any liability on the part of the other party as regards the soundness of the delivery or performance of the agreement, unless the other party has provided a statement of the consequences for the price and the delivery times within five calendar days after Roche’s written request for changes or additions, but in any event before delivery or performance, and these consequences have been accepted in writing by Roche.
3 Price and payment
3.1 The agreed price is “all inclusive” (i) and therefore inclusive among other things of all costs and duties, adequate packaging, inspections, testing, certificates, import duties, levies, transport and suchlike, but exclusive of VAT and, in case of the provision of services, (ii) inclusive of travel and accommodation expenses, travel hours, transport, office, meal, administrative and other overhead costs, the costs of any third parties engaged by the other party with Roche’s written approval and levies imposed by the government, unless expressly agreed otherwise in writing prior to the agreement. The agreed price cannot be increased during the term of the agreement, unless Roche has accepted such a price increase in writing.
3.2 Payment by Roche takes place within 30 calendar days after receipt of the invoice. Irrespective of any previous invoice date, the aforementioned term commences in any event no sooner than after delivery in accordance with article 5 or performance in accordance with article 11. Invoices only qualify for payment if they have been clearly specified, addressed to the accounts payable department and provided with a valid purchase number.
3.3 Payment by Roche does not imply in any way any waiver of any right under the agreement, these General Purchase Conditions or the law. Payment cannot be considered to constitute any acknowledgement on Roche’s part of the soundness of the goods delivered and/or the services provided and does not release the other party from any liability in this connection.
3.4 All payments by Roche apply as settlement of the debt indicated by Roche in connection with that payment.
3.5 Payment releases Roche from all obligations arising from the relevant agreement and cannot be considered by the other party to constitute payment of any other claim against Roche alleged by the other party.
Purchasing goods
4 General
4.1 Articles 4 up to and including 9 apply in addition to the general terms and conditions set out above and below in so far as the agreement between Roche and the other party concerns goods to be purchased or purchased by Roche from or via the other party. In case of inconsistencies between articles 4 up to and including 9 of these General Purchase Conditions, articles 4 up to and including 9 will prevail.
5 Delivery and packaging
5.1 Unless otherwise agreed in writing, delivery must take place ‘Delivery Duty Paid’ in accordance with the relevant provisions of the most recent version of Incoterms, at the location indicated by Roche, provided with a related waybill. The agreed delivery term constitutes a strict deadline. Exceeding the delivery term means that the other party is in default without requiring notice of default. The other party is obliged to give Roche timely and adequate prior notice of delivery as well as any threat of the delivery term being exceeded. In the event a penalty in case of late delivery has been agreed, such will not prejudice Roche’s right to demand performance and/or the fact that the actual loss sustained by Roche as a result of late delivery must be compensated by the other party if this loss exceeds the amount of the penalty.
5.2 In the event Roche is reasonably unable to take receipt of the goods presented for delivery, the other party will store the goods for a term to be agreed further for its account and risk in such a manner that the correct and consistent composition of the goods remains guaranteed and the required quality level is maintained.
5.3 Partial delivery and delivery of more or less of the agreed quantities is only allowed if and in so far as the order issued by Roche expressly indicates this. The risk concerning the excess goods delivered that are stored at Roche remains with the other party until agreement has been reached on what should be done with these goods. All costs related to the storage of more than the agreed quantities are for the account of the other party, unless the parties have reached agreement concerning a different division of these costs.
5.4 The goods and/or materials must be packaged and preserved in such a manner that protection against outside influences is guaranteed. The other party is obliged to comply with any instructions from Roche in this connection. The other party is liable for all damage to goods and/or materials caused by insufficient and/or unsound packaging, or damage or destruction of the packaging.
5.5 If one of the parties becomes aware of a defect in the goods delivered, including the packaging, it will be obliged to notify the other party thereof immediately, while stating (i) the type of defect, (ii) the goods affected and (iii) all information that might be relevant.
6 Passing of risk and ownership
6.1 The other party guarantees that the full and unencumbered ownership of the goods will be delivered. In the event Roche makes any payment before completion of delivery, ownership of the goods, including all materials forming part thereof or intended therefor, will pass immediately to Roche in which connection any retention of title made will lapse immediately at that moment. If this is the case, the other party will hold these goods for Roche and the other party will be obliged to perform all acts that are reasonably necessary or conducive for making Roche’s property identifiable as such and keeping them separate.
6.2 The goods and/or materials remain for the account and risk of the other party until they have been delivered, however.
7 Documentation, parts and tools
7.1 All drawings, manuals, computer software, parts, tools and rights of use required for maintenance, repair, use and/or resale of the goods, will be included in the transfer to Roche, both upon delivery and later, if necessary, and, in so far as specifically created in connection with the order issued by Roche, are transferred in ownership to Roche, in accordance with the provisions of article 13 of these General Purchase Conditions.
8 Inspection
8.1 Roche has the right at all times to inspect or have inspected the goods that have been delivered or that are to be delivered, or to investigate whether the services have been provided in accordance with these General Purchase Conditions. The other party will be required to cooperate fully therein.
8.2 In case the goods are rejected, Roche will notify the other party thereof. Roche will store the rejected goods or have them stored for the account and risk of the other party. If the other party has not taken back the goods within a term of 14 calendar days after Roche has notified the other party that the goods delivered have been rejected, Roche will have the right to return these goods to the other party for the account and risk of the other party without its consent. If the other party refuses to take receipt of the goods, Roche will have the right to store, sell or destroy these goods for the account and risk of the other party.
8.3 The other party will not be able to derive any rights from the findings of an inspection or investigation as referred to in Article 8.1 or the fact that such have not been performed.
8.4 Roche is never bound by any term imposed by the other party within which Roche must notify that the goods delivered have been rejected or, at any rate, within which Roche must submit complaints.
8.5 The Supplier commits that it will retain a full audit trial of financial and non-financial data relating to this Agreement or assignments carried out on the basis of Sub-agreements that come under this Agreement, to the degree and as detailed as necessary to substantiate the claims for payment properly, and such for a period of at least ten (10) years after completion of an assignment in connection with a Sub-agreement, but in any event for at least the period prescribed by applicable legislation.
The Supplier agrees that the Customer has the right and that the Supplier must grant the Customer or its representatives access without prior notification, for the purpose of carrying out the necessary audits and inspections of the Supplier:
a. to assess the performance and compliance with the obligations under this Agreement and the Sub-agreements, including but not limited to compliance with ethical standards and the Supplier Code of conduct, as well as the accuracy of the administration and reporting; and/or
b. to perform audit activities related to the Agreement or the Sub-agreements, in so far as required on the basis of applicable legislation and regulations.
The Customer will make every effort to ensure that audits are carried out in a reasonable manner without negative consequences for the Supplier’s business activities. The Supplier will cooperate fully with the Customer or its representatives in connection with the audit, inter alia by granting access to all locations and all relevant information, in so far as this is reasonably necessary to carry out the audit. The Supplier will also keep its documents available for audits carried out by regulatory authorities.
9 Guarantees in respect of deliveries
9.1 The other party guarantees that the goods to be delivered and the related documentation comply with the agreed documentation, characteristics or requirements or, if nothing has been agreed in this connection, with the specifications, characteristics and requirements that are imposed or that are customary with respect to these goods within the context of business transactions. The other party also guarantees that the goods and related documentation comply with all conditions imposed by the government in the country of destination.
9.2 The other party also guarantees that the goods are in accordance with the production and/or confirmation samples approved in writing by Roche, are fully suitable for their intended purpose and can be used and processed as such, and that the goods are of sound and consistent quality at all times and are free from smells, features, characteristics and contaminations not inherent in the product of any kind whatsoever, irrespective of whether these contaminations cause a change to the product characteristics, and free from construction, material and manufacturing errors as well as errors or defects in the nature, composition, contents or recipe.
9.3 In the event the goods or the related documentation are rejected in whole or in part during production or after it has completion, upon or after delivery, by Roche or by an authority competent in this connection or it is determined in a different manner that they do not comply with the specifications, characteristics or requirements imposed with respect to them, the other party will, at Roche’s discretion, (i) adjust production to Roche’s satisfaction in order to comply with the specifications, characteristics and requirements as yet, (ii) refund amounts already paid or (iii) deliver goods and/or documentation as yet that comply with the specifications, characteristics and requirements to be imposed in respect of them, without prejudice to Roche’s other rights.
9.4 Roche has the right to send back the goods and/or documentation for the other party’s account or to retain them for the account and risk of the other party. In the event goods and/or documentation are stored by Roche, the other party will be obliged to collect them from Roche within two working after Roche has requested it to do so, failing which Roche can do with them as Roche sees fit.
Provision of services
10 General
10.1 Articles 10 up to and including 12 apply in addition to the general terms and conditions set out above and below in so far as the agreement between Roche and the other party concerns services to be purchased or purchased by Roche from or via the other party. In case of inconsistencies between articles 10 up to and including 12 of these General Purchase Conditions, articles 10 up to and including 12 will prevail.
11 Performance
11.1 The other party must carry out the assignment with due care and within the agreed term in accordance with a programme approved in writing by Roche and in accordance with responsible instructions regarding the performance of the assignment issued on time. Exceeding this term means that the other party is in default without requiring notice of default. The other party is obliged to give Roche timely and adequate prior notice of progress as well as any threat of the delivery term being exceeded. Such prior notification does not release the other party from its liability in case the term is actually exceeded. If the agreed activities have been completed in the opinion of the other party, it will notify Roche thereof in writing. Roche will inform the other party whether it accepts the performance delivered within fourteen calendar days after receipt of that notification. Commissioning Roche’s work cannot be considered to constitute acceptance thereof. Roche’s rights in connection with defects do not lapse as a result of acceptance of the performance delivered irrespective of whether it discovers these during the acceptance term or could have discovered them within reason and failed to report them to the other party.
11.2 In the event a penalty has been imposed in the agreement in respect of exceeding the term within the assignment must be completed, such will not prejudice Roche’s right to demand performance and/or the fact that the actual loss sustained by Roche as a result of late completion must be compensated by the other party if this loss exceeds the amount of the penalty.
11.3 If and in so far as the activities are performed at Roche’s site, such will take place during the working hours that apply there, unless otherwise agreed in writing. The other party will be obliged at Roche’s first request to perform the activities outside these working hours. Travel time and waiting time do not apply as time worked and can only be charged to Roche if an express, written agreement to that effect has been concluded between Roche and the other party.
11.4 Unless it has obtained Roche’s written approval, the other party will not be authorised to outsource all or part of the activities to third parties, on the basis of subcontracting or otherwise, which approval will not be refused on unreasonable grounds. Roche has the right at all times to withdraw its approval of a subcontractor if it has good reasons for doing so. Such withdrawal shall not have an impact on any ongoing agreement, but will apply to all future agreements between the Parties.
If such approval is granted, and in the event Roche has instructed that certain third parties must be engaged, the other party will nevertheless remain fully responsible for the performance of the assignment. Acts in failures on the part of the third parties referred to in this article or their employees apply as acts and failures on the part of the other party itself.
11.5 The other party must arrange for its account and on time for the performance of the activities and/or deploying employees, the necessary permits, exemptions, inspections and decisions.
11.6 The delivery and removal of materials and waste, rubble, packaging and remnants released by the activities takes place by and for the account of the other party in the manner prescribed by law.
11.7 The other party will appoint a suitable number of properly-qualified employees to provide the services, which employees are sufficiently equipped to provide the services.
The other party’s employees must comply with all rules concerning safety and all other applicable arrangements at the locations where the services must be performed/delivered, as well as all reasonable instructions issued by the owner of these locations. If the other party fails to comply with such rules and obligations, Roche will have the right to take appropriate measures itself for the account of the other party.
12 Guarantee in respect of services
12.1 The other party guarantees that the intended result as evident from the assignment, including functional suitability, will be realised and that the requirements imposed on Roche in this connection are satisfied. The other party furthermore guarantees the suitability and soundness of designs, drawings, guidelines, materials and suchlike that were recommended, prescribed or provided by it or on its behalf.
12.2 If the activities consist of providing advice, the other party guarantees the correctness and soundness thereof.
12.3 The other party declares and guarantees that the employees appointed to provide the services and the delivery of the products under the agreement will take place entirely in accordance with the applicable statutory provisions and rules, including employment and social legislation.
12.4 The other party finally guarantees that the activities will be carried at all times with due observance of all statutory and other provisions by the authorities in the area of the payment of national insurance contributions and taxes, safety, the environment, hygiene, product indications or otherwise, as these apply in accordance with applicable law and at the location of the activities.
All costs of measures, including remedial measures, in order to comply or comply as yet with these provisions, and all penalties and/or losses that result from the failure to comply with these provisions are always for the account of the other party, even if they are paid initially by Roche.
General Terms and Conditions
13 Intellectual property rights
13.1 Unless it is determined on the basis of 13.5 or in an agreement that ownership of intellectual property rights created on instruction are vested in Roche, the other party grants Roche for no consideration a non-exclusive, perpetual, irrevocable, worldwide and transferable right of use with respect to possible intellectual property rights in connection with the goods and/or services provided by the other party. This right of use also comprises the right to provide such a right of use to (potential) buyers or to third parties with which Roche maintains a professional relationship within the context of the exercise of its business.
13.2 The other party guarantees that the use, including resale, of the goods delivered or the services provided by it do not infringe the intellectual property rights or other rights of ownership of third parties.
13.3 The other party indemnifies Roche against third-party claims that arise from any infringement of the rights referred to in article 13.2 of these General Purchasing Conditions and the other party will reimburse to Roche all losses resulting therefrom.
13.4 In so far as Roche provides the other party with resources in respect of which Roche holds an intellectual property right, the other party acknowledges that Roche is and will remain the owner thereof at all times and the other party shall not acquire any intellectual property right or title whatsoever in respect thereof. The other party will maintain and keep these tools in a good state of repair for its own account and risk. It will not use these or cause these to be used by third parties, unless so authorised in writing by Roche. Article 15 applies accordingly to all tools referred to in this article 13.4.
13.5 If the other party develops goods specifically for Roche within the context of the agreement, any intellectual property rights that may be invoked in respect thereof will be vested exclusively in Roche. Any fee in this connection is deemed to be included in the agreed price for the goods. If necessary, the other party, including its employees, will cooperate fully in the establishment or transfer to Roche of these rights.
14 Confidentiality
14.1 The other party is obliged to keep secret all information provided by Roche, including all information concerning Roche that comes its attention within the context of a request for an offer, an order and/or performance of an agreement, and to stipulate the same from employees and third parties it uses within the context of the submission of an offer, the assessment of an order and for the performance of an agreement. The provisions of this article apply in particular but not only to data and information concerning products, installations or processes that are developed by the other party in cooperation with or on the instructions of Roche. The other party is not allowed to use the aforementioned information for its own purposes apart from compliance with its obligations under the agreement. The other party is not allowed to make the aforementioned information available for or to third parties without Roche’s prior approval.
14.2 These duties of confidentiality continue to exist during the term of the agreement and for a period of seven (7) years after it has ended, unless otherwise provided for in writing.
14.3 The other party acknowledges that it does not have the right to use the trademark or logo of Roche or affiliated companies without the prior, written approval of Roche.
The other party is obliged to refrain from using directly or indirectly its relationship with Roche for promotional activities or other purposes without the prior, written approval of Roche.
15 Force majeure
15.1 In the event of force majeure on the part of a party, compliance with the agreement will be suspended in whole or in part for the duration of the situation of force majeure, without the parties being obliged to pay any compensation to each other. If the situation of force majeure lasts for more than fourteen (14) calendar days, the other party will have the right to terminate the agreement with immediate effect and without requiring judicial intervention by means of a written notification, without such creating any right to compensation. If this is the case, Roche will have the right to keep the part of the goods already delivered, including all related materials, or the part of the agreement already performed, or demand surrender thereof and complete them or have them completed for the other party’s account.
15.2 Force majeure on the part of the other party does not include in any event: lack of employees, strikes, breach of contract by third parties engaged by the other party, transportation problems on the part of the other party or on the part of third parties engaged by the other party, breakdown of tools, liquidity or solvency problems on the part of the other party and/or government measures implemented against the other party.
16 Regulations and tools
16.1 During the performance of the agreements at the Roche sites and inside the Roche buildings, the other party and its employees will comply strictly with the operating, safety, health and wellbeing regulations that apply at Roche, as well as the instructions and guidelines that are issued by Roche from time to time in particular with respect to the supply and storage of goods, materials and/or tools and the access to the sites and buildings.
16.2 Only those persons registered by the other party with Roche and whose access has been approved by Roche will have access to the Roche sites.
16.3 With the exception of intent or gross negligence on the part of Roche or its subordinate managers, Roche is not liable for any losses or any injuries that arose in any way whatsoever or was caused to the other party, to third parties engaged by the other party in the performance of the agreement or third parties otherwise involved, during the performance of the agreement. Roche is not liable in any event for indirect or immaterial losses, such as but not limited to direct trading or consequential losses or demurrage or loss of revenue and profit, loss of customers, damage to the reputation and/or goodwill. The other party indemnifies Roche and holds it harmless in connection with all claims in which connection Roche is not liable and does not wish to be liable pursuant to the matters set out above.
16.4 The other party will arrange for its own account and risk for the required installations, auxiliary materials and tools.
17 Change management
17.1 In the event the other party wishes to deliver an article/service that is altered in certain respects or wishes to provide a different article and/or service, Roche will be obliged to notify on time and in any event within at most three (3) months in advance, which specifications have changed via [email protected]. Roche will be afforded the opportunity to test whether the altered article still complies with the requirements of the agreement.
17.2 The other party will cooperate free of charge in the implementation of the altered article, at Roche itself and/or with its customers.
17.3 If the changes are such in nature that non-compliance applies, Roche will have the right to dissolve the agreement on the basis of article 22 of these general terms and conditions.
18 Information security
18.1 The other party will apply information security policy and comply with Roche’s instructions concerning information security.
18.2 The other party guarantees that the goods will be delivered free from viruses.
18.3 The contractor will take all appropriate technical and organisational measures to secure the data that are processed for the benefit of the Client and to keep them secured against loss, unauthorised access, corruption or unlawful processing, as well as to guarantee the (timely) availability of the data. The measures are based on a risk analysis and are in accordance with generally recognised standards in the field of information security.
19 Data protection
19.1 In the event the other party processes personal data within the context of the performance of the agreement, which data it received from Roche and/or that concern Roche employees, the other party will do so in a proper and careful manner and in accordance with the General Data Protection Regulation and the GDPR Implementation Act. The other party applies privacy policy and information policy that complies at least with the aforementioned acts and other customary requirements in this area and preferably complies with the standards set in ISO 27001 and/or NEN 7510. The other party will only process personal data received from Roche if this is strictly necessary for the performance of the agreement and not for any other purpose.
19.2. The other party will inform Roche within five working days of:
a. a request and/or complaint from the supervisory authority or a data subject with respect to the personal data that are processed in the performance of the agreement. The other party cooperates in answering those requests as well as the requests Roche receives from data subjects, including but not limited to the right of inspection, improvement, deletion, the right to object to the processing of own personal data.
b. any court order, summons, statutory or other obligation to share personal data with third parties.
19.3. The other party informs Roche as soon as possible, but within at most 24 hours, of the discovery of an actual or possible data breach that may involve data concerning or provided by Roche. The other party will provide Roche with all information necessary for the assessment of the actual or possible data breach and the parties will consult concerning the best approach. Communication, including with the supervisory authority if necessary, will take place in mutual consultation. Any costs incurred by the other party in connection with the resolution of the data breach remain for the account of the other party.
19.4. As soon as the agreement between Roche and the other party ends, the other party will cease the processing of the personal data under the agreement and, if Roche requests such, destroy these data, unless the other party has a different basis for continuing to process these data.
20. Liability
20.1 Any failure on the part of the other party to comply with its obligations will give Roche the right to oblige the other party to effect full or partial reversal of the failure and/or the consequences thereof for the account and risk of the other party.
20.2 The other party is liable for all losses sustained by Roche and/or later customers or users, including the end consumers of the goods delivered, in processed or unprocessed condition, as a result of a failure on the part of the other party to comply with its obligations and/or as a result of the acts or omissions on the part of the other party or its personnel or third parties engaged by it. The other party's liability extends to both direct and indirect losses.
20.3 The other party indemnifies Roche against all claims from third parties in connection with losses that have arisen as a result of any act or omission by the other party in the performance of the agreement concluded between the other party and Roche.
20.4 The other party must take out adequate insurance against the losses referred to in article 20.2. This obligation to insure also covers auxiliary materials that are involved in any way in the performance of the agreement. The other party will have it noted on its insurance policies that any payments made by the insurance company will be made directly to the party that actually sustained the loss. The other party will allow Roche to inspect the relevant insurance policies at its first request.
20.5 Roche is not be liable for losses sustained by the other party, unless such loss results from intent or wilful recklessness on the part of Roche or its management. Wilful recklessness as referred to in the previous sentence of this paragraph is defined exclusively as an act in which connection Roche’s management is aware (subjectively) that the probability that the act will cause damage is higher than the probability that the act will not cause damage.
20.6 The other party declares that it will not infringe any third-party intellectual property rights during its compliance with its obligations and that it will indemnify Roche against all claims from third parties on the basis of claims arising from an infringement of third-party intellectual property rights.
21 Outsourcing prohibition. Setoff/
21.1 The other party is not allowed without Roche's written approval to transfer the agreement or the performance thereof in whole or in part to third parties.
21.1 Roche has the right at all times to transfer all or part of the agreement, without the other party’s consent, to any other company forming part of the Roche Group, with the exception of Chugai Pharmaceutical Co. Ltd., 1-1, Nihonbashi-Muromachi 2-chome, Chuo-ku Tokyo, 103-8324, Japan (“Chugai”), unless Roche opts in writing to include Chugai and/or FMI herein.
21.2. The other party does not have the right to invoke any right of suspension or any right of setoff against Roche.
21.3 Claims of the other party against Roche cannot be transferred unless Roche has approved this in writing.
22 Dissolution
Roche has the right to suspend performance of the agreement or, at its discretion, terminate or dissolve all or part of the agreement with immediate effect by means of a written statement and without prior notice of default, notification or judicial intervention, while retaining all of its rights to compensation of costs, losses and interest:
a. in the event the other party fails to comply with one or more of its obligations arising from or otherwise related to the agreement or fails to do so on time or properly, or it is established that performance without failure will be impossible;
b. if Roche has a well-founded reason to fear that the other party is not willing or able or will not comply with its obligations;
c. in the event the other party is declared bankrupt or its bankruptcy or suspension of payment, provisional or otherwise, is applied or granted, liquidates or ceases its business, offers a composition, an attachment is levied against all or part of its assets or otherwise proves insolvent;
d. in the event Roche considers that drastic changes occur in the direct or indirect ownership or control structure within the other party or its business.
22.2 Roche also has the right to terminate or dissolve the agreement at its discretion if any benefit is or has been offered or provided in connection with the conclusion or performance of the agreement to a person who is affiliated with Roche.
22.3 In case of termination or dissolution, Roche will never be obliged to pay any form of compensation. The other party is obliged to indemnify Roche and hold it harmless against claims from third parties that may arise as a result of or in connection with the termination or dissolution.
22.4 In case of termination or dissolution, the other party will be obliged to reimburse immediately all costs already incurred by Roche, without prejudice to Roche’s other rights pursuant to the law, the agreement or these General Purchase Conditions, including Roche’s right to claim full compensation. In case of termination or dissolution, Roche will also have the right, at its discretion, (i) to keep the part of the goods already delivered, including all related materials, or the part of the agreement already performed, or demand surrender thereof and complete them or have them completed for the other party’s account or (ii) while returning what was already delivered to it, oblige the other party to refund immediately all amounts already paid by Roche.
22.5 Apart from the cases referred to above, Roche will have the right to dissolve the agreement unilaterally at any time against payment of the prorated price of the part of the agreement already performed and delivered, increased by a surcharge of 5% in respect of the price of the part of the agreement yet to be performed or delivered, if and in so far as the other party sustains damage and/or loss, including lost profit, as a result of that dissolution. The aforementioned compensation replaces any other remedy available to the other party on the basis of that termination or dissolution.
23 Compliance and Roche Supplier Code of Conduct
The other party agrees that it will provide the services and/or deliver the products in accordance with the highest professional standards and that it will comply with all applicable statutory provisions and rules, as well as the standards formulated in the Supplier Code of Conduct of the Customer (Annex III), the Anti-Corruption form (Annex IV) and the Health and Safety Code (Annex V). These documents may be amended unilaterally by Roche at regular moments. The version amended most recently is available upon request. The other party and the third parties engaged by it has taken note of the Roche Supplier Code of Conduct and guarantees that its activities will be performed with due observance of the Code. Roche has the right to carry out an audit or have an audit carried out by a third party from time to time and following written announcement. The other party will comply upon first request with every question from Roche concerning compliance with the Code.
In so far as the other party requires certification, consent, approvals or insurance for the purpose of the provision of the Services and/or the Products, it confirms that it has received these and will comply with these.
24 Other provisions, applicable law and competent court
24.1 If one or more provisions of these General Purchase Conditions prove to be invalid or are rendered inoperative by a court, the other provision will continue to apply in full.
24.2 All obligations between Roche and the other party are governed by Dutch law. The applicability of the 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG/Vienna Sales Convention) is excluded.
24.3 In case of disputes arising from the agreement or the agreements that build thereon, the parties will attempt to resolve these in the first instance with the aid of Mediation in accordance with the relevant regulations of the Netherlands Mediation Institute (NMI), the Netherlands Mediators Federation (MFN), as these read on commencement date of the Mediation. If it proves impossible to resolve a dispute as referred to above by means of Mediation, such a dispute will be submitted to the competent court in Roches’ place of business, unless mandatory statutory provisions prescribe otherwise.
