Plasmacure General Conditions of Purchase



Plasmacure General Conditions of Purchase
Version 1.0 – 01 APRIL 2020
1. Definitions
In this document: (a) “Affiliate(s)” shall mean (i) in the case of
Plasmacure B.V. and (ii) in the case of Plasmacure and Supplier:
any and all other companies, firms and legal entities with respect to
which now or hereafter Plasmacure B.V. or Supplier respectively,
directly or indirectly holds 50% or more of the nominal value of the
issued share capital or 50% or more of the voting power at general
meetings or has the power to appoint a majority of directors or
otherwise to direct the activities of such company, firm or legal
entity; in the case of Plasmacure, the Affiliates of Plasmacure may
be listed for convenience purposes in the Eligible Buying Locations
list (to be determined) (b) “Agreement” shall mean the binding
contract formed as described in Clause 2.1 herein; (c) “APAC” shall
mean the Middle Eastern, Asian and other Pacific countries (d)
“Goods” shall mean both tangible and intangible goods, including
software and related documentation and packaging; (e) Intellectual
Property Rights” (or “IPRs”) shall mean patents, utility certificates,
utility models, industrial design rights, copyrights, database rights,
trade secrets, any protection offered by law to Information,
semiconductor IC topography rights and all registrations,
applications, renewals, extensions, combinations, divisions,
continuations or reissues of any of the foregoing or which
otherwise arises or is enforceable under the laws of any jurisdiction
or any bi-lateral or multi-lateral treaty regime; (f) “LATAM” shall
mean the Latin American countries, excluding Argentina;
(g) “Personal Data” shall mean any and all information relating to
an identified or identifiable individual, including but not limited to
Plasmacure current or former employees, employee family members,
dependents or beneficiaries, customers, consumers, suppliers,
business partners or contractors; (h) “Plasmacure” shall mean the
purchasing Affiliate of Plasmacure B.V. identified in Plasmacure’
order and where applicable includes other Affiliates of Plasmacure;
(i) “Processing” shall mean any operation or set of operations
performed or to be performed upon Personal Data, whether or not
by automatic means, such as creation, access, collection, recording,
organization, storage, loading, employing, adaptation or
alteration, retrieval, consultation, displaying, use, disclosure,
dissemination or otherwise making available, alignment or
combination, blocking, erasure or destruction (hereinafter also
referred to as a verb “Process”); (j) “Open Source Software”
shall mean (1) any software that requires as a condition of use,
modification and/or distribution of such software, that such
software: (i) be disclosed or distributed in source code form; (ii)
be licensed for the purpose of making derivative works; (iii) may
only be redistributed free from enforceable IPRs; and/or (2) any
software that contains, is derived from, or statically or dynamically
links to, any software specified under (1); (k) “Services” shall mean
the services to be performed by Supplier for Plasmacure under
the Agreement; (l) “Supplier” shall mean each person or entity
(including, where relevant, its Affiliates) that enters into the
Agreement; (m) “Work Product” shall mean all deliverables
(including future deliverables) and other data, reports, works,
inventions, know-how, software, improvements, designs, devices,
apparatus, practices, processes, methods, drafts, prototypes,
products and other work product or intermediate versions thereof
produced or acquired by Supplier, its personnel or its agents for
Plasmacure in the performance of Services under the Agreement.
2. Formation of the Agreement
2.1. These General Conditions of Purchase, together with the
relevant Purchase Order issued by Plasmacure, set forth the terms
under which Plasmacure’ offers to purchase Goods and/or
Services from Supplier. When Supplier accepts Plasmacure’ offer,
either by acknowledgement, delivery of any Goods and/or
commencement of performance of any Services, a binding
contract shall be formed. Such Agreement is limited to these
General Conditions of Purchase as specified on the face and
reverse of this document, the relevant Purchase Order and any
attachments. Plasmacure does not agree to any proposed
amendment, alteration, or addition by Supplier. The Agreement
can be varied only in writing signed by Plasmacure. Any other
statement or writing of Supplier shall not alter, add to, or otherwise
affect the Agreement.
2.2. Plasmacure is not bound by and hereby expressly rejects
Supplier’s general conditions of sale and any additional or different
terms or provisions that may appear on any proposal, quotation,
price list, acknowledgment, invoice, packing slip or the like used by
Supplier. Course of performance, course of dealing, and usage of
trade shall not be applied to modify these General Conditions of
2.3. All costs incurred by Supplier in preparing and submitting
any acceptance of Plasmacure’ offer shall be for the account of
3. Time of the Essence
Time is of the essence and all dates referred to in the Agreement
shall be firm. In the event that Supplier anticipates any difficulty in
complying with any delivery date or any of its other obligations
under the Agreement, Supplier shall promptly notify Plasmacure
in writing.
4. Delivery of Goods
4.1. Unless expressly agreed otherwise in writing, all Goods shall
be delivered FCA (named port or place of departure) except that
maritime transport shall be delivered FOB (named port of shipment)
(as defined in the Incoterms 2010) final destination determined by
4.2. Delivery shall be completed as per the applicable Incoterm,
but this shall not constitute acceptance of the Goods.
4.3. Supplier shall, concurrently with the delivery of the Goods,
provide Plasmacure with copies of all applicable licenses. Each
delivery of Goods to Plasmacure shall include a packing list
which contains at least (i) the applicable order number, (ii) the
Plasmacure part number, (iii) the quantity shipped, and (iv) the
date of shipment.
4.4. Supplier shall make no partial delivery or delivery before the
agreed delivery date(s). Plasmacure reserves the right to refuse
delivery of Goods and return same at Supplier’s risk and expense if
Supplier defaults in the manner and time of delivery or in the rate of
shipment. Plasmacure shall not be liable for any costs incurred by
Supplier related to production, installation, assembly or any other
work related to the Goods, prior to delivery in accordance with the
4.5. Any design, manufacturing, installation or other work to be
performed by or on behalf of Supplier under the Agreement shall
be executed with good workmanship and using proper materials.
4.6. Supplier shall pack, mark and ship the Goods in
accordance with sound commercial practices and Plasmacure’
specifications in such manner as to prevent damage during
transport and to facilitate efficient unloading, handling and
storage, and all Goods shall be clearly marked as destined for
Plasmacure. Notwithstanding the provisions of the applicable
Incoterms, Supplier shall be responsible for any loss or damage
due to its failure to properly preserve, package, handle (before
delivery as per the applicable Incoterm) or pack the Goods;
Plasmacure shall not be required to assert any claims for such loss
or damage against the common carrier involved.
5. Changes to Goods
Supplier shall not, without prior written consent of Plasmacure,
make any changes affecting Goods, including process or design
changes, changes to manufacturing processes (including
geographic location) changes affecting electrical performance,
mechanical form or fit, function, environmental compatibility,
chemical characteristics, life, reliability or quality of Goods or
changes that could have significant impact upon Supplier’s
Plasmacure General Conditions of Purchase
Version 1.0 – 01 APRIL 2020
quality system.
6. Inspection, Testing, Rejection of Goods
6.1. Inspection, testing of or payment for the Goods by
Plasmacure shall not constitute acceptance. Inspection or
acceptance of or payment for the Goods by Plasmacure shall not
release Supplier from any of its obligations, representations or
warranties under the Agreement.
6.2. Plasmacure may, at any time, inspect the Goods or the
manufacturing process for the Goods. If any inspection or test
by Plasmacure is made on the premises of Supplier, Supplier shall
provide reasonable facilities and assistance for the safety and
convenience of Plasmacure’s inspection personnel.
6.3. If Plasmacure does not accept any of the Goods,
Plasmacure shall promptly notify Supplier of such rejection, and
Clause 11 below shall apply. Within two (2) weeks from such
notification, Supplier shall collect the Goods from Plasmacure at
its own expense. If Supplier does not collect the Goods within
said two (2) week period, Plasmacure may have the Goods
delivered to Supplier at Supplier’s cost, or with the Supplier’s prior
consent destroy the Goods, without prejudice to any other right
or remedy Plasmacure may have under the Agreement or at law.
Goods not accepted but already paid by Plasmacure shall be
reimbursed by Supplier to Plasmacure and Plasmacure shall have
no payment obligation for any Good not accepted by Plasmacure.
6.4. If, as a result of sampling inspection, any portion of a lot or
shipment of like or similar items is found not to conform to the
Agreement, Plasmacure may reject and return the entire shipment
or lot without further inspection or, at its option, complete
inspection of all items in the shipment or lot, reject and return any
or all nonconforming units (or accept them at a reduced price)
and charge Supplier the cost of such inspection.
7. Performance of Services
7.1. Supplier shall perform the Services with due skill and care,
using the proper materials and employing sufficiently qualified
7.2. Supplier shall be fully liable for the acts and omissions of
any and all third parties with which it has contracted in connection
with the Services.
7.3. Only written confirmation by Plasmacure shall constitute
acceptance of the Services performed. If Plasmacure does not
accept the Service and/or Work Product(s), Clause 11 below shall
apply. Plasmacure shall promptly notify Supplier of such rejection,
and Supplier will, at its own expense, carry out the necessary
corrections, additions and modifications reasonably requested
by Plasmacure in writing within thirty (30) days of such
8. Prices; Payment
8.1. Unless provided otherwise in the Purchase Order, title in the
Goods shall pass to Plasmacure at the time risk is transferred to
Plasmacure pursuant to the applicable Incoterm.
8.2. All prices quoted in the Agreement shall be fixed prices.
Supplier warrants that such prices are not in excess of the lowest
prices charged by Supplier to other similarly situated customers for
similar quantities of Goods or Services of like kind and quality.
8.3. (i) All prices are gross amounts but exclusive of any value
added tax (VAT), sales tax, GST, consumption tax or any other
similar tax only. (ii) If the transactions as described in the
Agreement are subject to any applicable VAT, sales tax, GST,
consumption tax or any other similar tax, Supplier may charge VAT,
sales tax, GST, consumption tax or any other similar tax to
Plasmacure, which shall be paid by Plasmacure in addition to the
prices quoted. Supplier is responsible for paying any applicable
VAT, sales tax, GST, consumption tax or any other similar tax to
the appropriate (tax) authorities. At or after the time delivery
has been completed as per Clause 4.2 but ultimately within six
months from delivery, Supplier shall issue an invoice meeting all
applicable legal and fiscal requirements and which shall contain: (i)
the Plasmacure purchase order number, and (ii) wording that shall
allow Plasmacure to take advantage of any applicable “input” tax
deduction. In addition, Supplier shall inform Plasmacure whether
Plasmacure is allowed to apply for an exemption if and to the extent
allowed under applicable law in such specific situation.
8.4. Any license fees shall be included in the price.
8.5. Subject to the acceptance of the Goods, Services and/or Work
Product by Plasmacure, and unless provided otherwise in the
Purchase Order, payment shall be made as follows: within sixty (60)
days from receipt of the correct invoice in accordance with 8.3 in the
proper form.
8.6. If Supplier fails to fulfill any of its obligations under the
Agreement, Plasmacure may suspend payment to Supplier upon
notice to Supplier.
8.7. Supplier hereby unconditionally accepts that Plasmacure
and any of its Affiliates shall at all times have the right to set-off any
amounts that any Plasmacure Affiliate owes to Supplier or its Affiliates
under this Agreement with any amounts that Supplier or its
Affiliates owes to any Affiliate of Plasmacure under the Agreement
or any other agreement.
8.8. Supplier acknowledges and agrees that any amount to be
paid by Plasmacure to Supplier may be paid on Plasmacure’
behalf by another Affiliate of Plasmacure and/or a third party
designated by Plasmacure. Supplier shall treat such payment as if
it were made by Plasmacure itself and Plasmacure’ obligation to
pay to Supplier shall automatically be satisfied and discharged in
the amount paid by such entity or third party.
9. Warranty
9.1. Supplier represents and warrants to Plasmacure that all
Goods and/or Work Product(s):
(a) are suitable for the intended purpose and shall be new,
merchantable, of good quality and free from all defects in
design, materials, construction and workmanship;
(b) strictly comply with the specifications, approved samples
and all other requirements under the Agreement;
(c) are delivered with all required licenses which shall remain
valid and in place, and with the scope to properly cover the
intended use. Furthermore, all such licenses shall include
the right to transfer and the right to grant sublicenses;
(d) shall be free from any and all liens and encumbrances;
(e) have been designed, manufactured and delivered in
compliance with all applicable laws (including labor laws),
regulations, EC Directive 2001/95 on General Product
(f) are provided with and accompanied by all information and
instructions necessary for proper and safe use; including all
its packaging and components supplied to Plasmacure
comply with the Regulated Substances or will be sent to
Supplier upon its first written request. Supplier shall furnish
to Plasmacure any information required to enable
Plasmacure to comply with such laws, rules, and regulations
in its use of the Goods and Services. Supplier agrees that,
upon request of Plasmacure, it shall register and use
BOMcheck ( to make substance
compliance declarations including ROHS, REACH and
other applicable regulatory requirements by making
declarations in BOMcheck to fully comply with the
restricted substances, unless otherwise agreed with
Plasmacure. Supplier will also adhere to future restricted
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Version 1.0 – 01 APRIL 2020
substances changes following notification from BOMcheck
or other non- registered correspondence and is and will be
fully compliant with the updated restricted substances
within 3 months of receiving the notification, unless
otherwise agreed with Plasmacure. Plasmacure may reject
deliveries that do not comply with these requirements; and
(g) will be accompanied by written and detailed specifications
of the composition and characteristics, to enable
Plasmacure to transport, store, process, use and dispose of
such Goods and/or Work Product safely and in compliance
with law.
9.2. These warranties are not exhaustive and shall not be
deemed to exclude any warranties set by law, Supplier’s standard
warranties or other rights or warranties which Plasmacure may
be entitled to. These warranties shall survive any delivery,
inspection, acceptance, payment or resale of the Goods, and shall
extend to Plasmacure and its customers.
9.3. Without prejudice to any other rights accruing under the
Agreement or law, the warranties set forth in Article 9.1 will subsist
for a period of thirty-six (36) months from the date of delivery as per
Clause 4.2, or such other period as agreed in the Agreement
(the “Warranty Term”). Goods repaired or replaced within the
Warranty Term are warranted for the remainder of the original
Warranty Term of said Goods, or twelve (12) months following the
delivery date of such repaired or replaced Goods, whichever is
10. Open Source Software Warranty
Unless the inclusion of Open Source Software is specifically
authorized in writing by duly authorized officers of Plasmacure
and unless otherwise stated in the Agreement, Supplier represents
and warrants that the Goods do not include any portion of any
Open Source Software.
11. Non-conformity
11.1. If any Goods, Services or Work Products are defective,
latent or otherwise do not conform to the requirements of the
Agreement, Plasmacure shall notify Supplier and may, without
prejudice to any other right or remedy available to it under the
Agreement or at law, at its sole discretion:
(a) require performance by Supplier;
(b) require delivery of substitute Goods or Work Products;
(c) require Supplier to remedy the lack of conformity by repair;
(d) declare the contract rescinded; or
(e) reduce the price in the same proportion as the value of
the Goods or Services actually delivered, even if that
results in a full refund of the price paid to Supplier.
11.2. Supplier shall bear all cost of repair, replacement and
transportation of the nonconforming Goods, and shall reimburse
Plasmacure in respect of all costs and expenses (including, without
limitation, inspection, handling and storage costs) reasonably
incurred by Plasmacure in connection therewith.
11.3. Risk in relation to the nonconforming Goods shall pass
to Supplier upon the date of notification thereof.
12. Ownership and Intellectual Property
12.1. All machinery, tools, drawings, specifications, raw
materials and any other property or materials furnished to Supplier
by or for Plasmacure, or paid for by Plasmacure, for use in the
performance of the Agreement, shall be and remain the sole
exclusive property of Plasmacure and shall not be furnished to
any third party without Plasmacure’ prior written consent, and all
information with respect thereto shall be confidential and
proprietary information of Plasmacure. In addition, any and all of
the foregoing shall be used solely for the purpose of fulfilling
orders from Plasmacure, shall be marked as owned by Plasmacure,
shall be held at Supplier’s risk, shall be kept in good condition
and, if necessary, shall be replaced by Supplier at Supplier’s
expense, shall be subject to periodic inventory check by Supplier
as reasonably requested from time to time by Plasmacure, and
shall be returned promptly upon Plasmacure’ first request. Except
as otherwise expressly agreed in writing, Supplier agrees to furnish
at its own expense all machinery, tools, and raw materials necessary
to perform its obligations under the Agreement.
12.2. Supplier represents and warrants to Plasmacure that the
Goods and Services do not and shall not, alone or in any
combination, infringe or violate any third party (including
Supplier’s employees and subcontractors) IPRs.
12.3. The purchase of the Goods and/or Services shall confer
on Plasmacure and its Affiliates an irrevocable, world-wide,
royalty-free and fully paid up, non-exclusive and perpetual license
under all IPRs owned or controlled, directly or indirectly, by
Supplier to use, make, have made, build-in, have built-in, market,
sell, lease, license, distribute and/or otherwise dispose of the
Goods and/or Services, including but not limited to machinery,
tools, drawings, designs, software, demos, moulds, specifications or
12.4. Plasmacure shall retain all rights in any samples, data, works,
materials and intellectual and other property provided by
Plasmacure to Supplier. All rights in and titles to the Work Product
shall become Plasmacure’ property. Supplier shall execute and
deliver any documents and do such things as may be necessary or
desirable in order to carry into effect the provisions of this Clause
12.5. Supplier shall not have any right, title or interest in or
to any of Plasmacure’ samples, data, works, materials,
trademarks and intellectual and other property nor shall the supply
of Goods and/or Services alone or in any combination, or the
supply of packaging containing Plasmacure’ trademarks or trade
names give Supplier any right or title to these or similar
trademarks or trade names. Supplier shall not use any trademark,
trade name or other indication in relation to the Goods or Services
alone or in any combination without Plasmacure’ prior written
approval and any use of any trademark, trade name or other
indication as authorized by Plasmacure shall be strictly in
accordance with the instructions of and for the purposes specified
by Plasmacure.
12.6. Supplier shall not, without Plasmacure’ prior written
consent, publicly make any reference to Plasmacure, whether in
press releases, advertisements, sales literature or otherwise.
13. Intellectual Property Indemnification
13.1. Supplier shall indemnify and hold harmless Plasmacure,
its Affiliates, agents and employees and any person selling or
using any of Plasmacure’ products in respect of any and all
claims, damages, costs and expenses (including but not limited to
loss of profit and reasonable attorneys’ fees) in connection with any
third party claim that any of the Goods or Services alone or in any
combination or their use infringes any third party IPRs, or, if so
directed by Plasmacure, shall defend any such claim at Supplier’s
own expense.
13.2. Plasmacure shall give Supplier prompt written notice of any
such claim, provided, however, any delay in notice shall not relieve
Supplier of its obligations hereunder except to the extent it is
prejudiced by such delay. Supplier shall provide all assistance in
connection with any such claim as Plasmacure may reasonably
13.3. If any Goods or Services alone or in any combination,
supplied under the Agreement are held to constitute an
infringement or if their use is enjoined, Supplier shall, as directed
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by Plasmacure, but at its own expense: either
(a) procure for Plasmacure or customers the right to continue
using the Goods or Services alone or in any combination;
(b) replace or modify the Goods or Services alone or in any
combination with a functional, non- infringing equivalent.
13.4. If Supplier is unable either to procure for Plasmacure the
right to continue to use the Goods or Services alone or in any
combination or to replace or modify the Goods or Services alone or
in any combination in accordance with the above, Plasmacure
may terminate the Agreement and upon such termination,
Supplier shall reimburse to Plasmacure the price paid, without
prejudice to Supplier’s obligation to indemnify Plasmacure as set
forth herein.
14. Indemnification
Supplier shall indemnify and hold harmless Plasmacure, its Affiliates,
agents and employees and anyone selling or using any of
Plasmacure’ products, from and against all suits, actions, legal or
administrative proceedings, claims, demands, damages,
judgments, liabilities, interest, attorneys’ fees, costs and expenses
of whatsoever kind or nature (including but not limited to special,
indirect, incidental, consequential damages), whether arising
before or after completion of the delivery of the Goods or
performance of the Services covered by the Agreement, in any
manner caused or claimed to be caused by the acts, omissions,
faults, breach of express or implied warranty, breach of any of
the provisions of this Agreement, or negligence of Supplier, or
of anyone acting under its direction or control or on its behalf, in
connection with Goods, Services or any other information
furnished by Supplier to Plasmacure under the Agreement.
15. Compliance with Laws
Supplier shall at all times comply with all laws, rules,
regulations, and ordinances applicable to the Agreement,
including, but not limited to, all fair labor, equal opportunity, and
environmental compliance laws, rules, regulations, and
ordinances. Supplier shall furnish to Plasmacure any information
required to enable Plasmacure to comply with any applicable
laws, rules, and regulations in its use of the Goods and Services.
If Supplier is a person or legal entity doing business in the United
States, and the Goods and/or Services are sold to Plasmacure
under federal contract or subcontract, all applicable procurement
regulations required by federal statute or regulation to be
inserted in contracts or subcontracts are hereby incorporated by
reference. Additionally, if Supplier is a person or legal entity doing
business in the United States, the Equal Employment Opportunity
Clauses set forth in 41 Code of Federal Regulations, Chapters 60-
1.4, 60-250.5, and 60-741.5, are hereby incorporated by reference.
16. Personal Data
For the purpose of or in connection with this Agreement, Supplier
may come to process information in any form relating to an
identified or identifiable individual (“Personal Data”), including
sensitive data, of individuals whom personal data is provided to
Supplier via the Products by (or at the direction of) Plasmacure
such as/i.e., consumers and employees. This Clause 16 sets out the
terms and respective rights and duties of the Parties in respect of
such Processing of Personal Data.
The duration of the Processing is intended as the Term plus the
period from the expiry of the Term until deletion or return of
Personal Data by Supplier in accordance with this Agreement.
Supplier undertakes and warrants that it and its personnel
involved with the performance of this Agreement shall:
(i) Process all Personal Data in accordance with all laws and
regulations applicable to the Processing, protection,
confidentiality or security of Personal Data and all further instructions
provided by Plasmacure with regard to the Processing. When used
in this Agreement, “Processing” shall mean any operation or set of
operations performed by automatic means or otherwise,
including, without limitation, the collection, recording,
rearrangement, organization, storage, loading, adaptation or
alteration, retrieval, consultation, display, use, disclosure,
dissemination, removal, erasure or destruction of Personal Data,
(“Process” and “Processed” shall be construed accordingly);
(ii) Process the Personal Data appropriately and accurately
and only insofar as necessary to provide the Products;
(iii) not Process the Personal Data for purposes not so
authorized or so instructed by Plasmacure;
(iv) ensure that only those Supplier personnel involved with
the performance of this Agreement shall have access to the
Personal Data and shall require such Supplier personnel to protect
and maintain the confidentiality and the security of the Personal
(v) Plasmacure acknowledges and agrees that Supplier may
engage Sub-Processors to Process Personal Data. Supplier shall
ensure that Sub-Processors are contractually bound to the same
data protection obligations with respect to the Processing of
Personal Data as those to which Supplier is bound under this
Agreement. Supplier remains fully liable to Plasmacure for the
Sub-Processor’s performance of the contract, as well as for any
acts or omissions of the Sub-Processor in regard to its Processing;
(vi) implement appropriate technical and organizational
security measures to ensure an appropriate level of security and
protect Personal Data;
(vii) cooperate with Plasmacure where this is necessary for
the performance of Plasmacure’ data protection impact
(viii) not disclose the Personal Data to any third party without
the prior written approval of Plasmacure. In case of a request for
disclosure to a competent governmental or semi-governmental
authority or court, if permitted by law, Supplier shall inform
Plasmacure of the exact nature of the request and the legal
obligation to comply with such request;
(ix) inform Plasmacure without undue delay after Supplier or
any Supplier personnel has become aware of a Personal Data
Breach. Supplier shall promptly take all necessary and appropriate
corrective actions to remedy any deficiencies in its security
measures, and take any action pertaining to such security incident
required by applicable law and by Plasmacure;
(x) not hold Personal Data any longer than necessary
for the purpose of performing, or having performed any
obligation under this Agreement. Subject to Supplier’s legal and
regulatory obligations with regard to the Personal Data,
Supplier shall ensure that Supplier and Supplier personnel
that Processes the Personal Data on its behalf (a) promptly returns
all Personal Data in its possession or control and all copies thereof
to Plasmacure and/or to a third party of choice of the Plasmacure
upon Plasmacure’ first request; and (b) upon termination of the
Agreement, for whatever reason, ceases to use the Personal Data
and at Plasmacure’ sole option arranges for either the prompt
and safe return to Plasmacure and/or to a third party of choice
of Plasmacure or the secure deletion and destruction of all the
Personal Data together with all copies in its possession or control;
(xi) ensure that transfers of Personal Data to Supplier’s
affiliates or Sub-Processors will occur on the basis of a legally
recognized transfer mechanism if Personal Data would be
transferred outside the European Economic Area as necessary to
provide the Products;
(xii) inform Plasmacure without undue delay of any
complaints, requests or enquiries received from Individuals,
including but not limited to requests to access, rectify or delete
Personal Data. Supplier shall not respond to the Individual directly
except where specifically instructed by Plasmacure. Supplier shall in
any event cooperate with Plasmacure to address and resolve any
complaints, requests or enquiries from Individuals;
(xiii) make available to Plasmacure all information necessary to
demonstrate compliance with the obligations applicable to the
Processing and laid down in this Agreement.
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17. Export Controls Compliance
17.1 Supplier agrees and warrants that it will comply with all
applicable international and national export control laws and
regulations and it will not export or re-export, directly or
indirectly, any information, goods, software and/or technology to
any country for which the European Union or the United States of
America or any other country, at the time of export or re-export,
requires an export license or other governmental approval,
without first obtaining such license or approval.
17.2 Supplier agrees to inform Plasmacure in writing whether or
not the supplied information, goods, software and/or technology
is US controlled and/or controlled under the export control laws
of its own country, and if so, Supplier will inform Plasmacure
about the extent of the restrictions (including but not limited to
export control legal jurisdiction, export control classification
numbers, export control licenses and/or CCATS as applicable).
17.3 Supplier shall obtain all international and national export
licenses or similar permits required under all applicable export
control laws and regulations and shall provide Plasmacure with all
information required to enable Plasmacure and its customers to
comply with such laws and regulations.
17.4 Supplier agrees to indemnify and hold Plasmacure
harmless from any claims, liabilities, penalties, forfeitures, and
associated costs and expenses (including attorney’s fees), which
Plasmacure may incur due to Supplier’s non-compliance with
applicable laws, rules and regulations. Supplier agrees to notify
Plasmacure promptly of Supplier’s receipt of any such notice of a
violation of any export control related law, rule or regulation,
which may affect Plasmacure.
18. Customs Compliance
18.1 On an annual basis, or upon earlier request of Plasmacure,
Supplier shall provide Plasmacure with a supplier declaration of
origin in relation to the Goods sufficient to satisfy the
requirements of (i) the customs authorities of the country of
receipt, and (ii) any applicable export licensing regulations,
including those of the United States. In particular, the declaration
should explicitly mention whether the Goods, or part thereof,
have been produced in the United States or originate in the
United States. Dual-use Goods, or otherwise classified Goods
supplied by Supplier should be clearly identified by their
classification code.
18.2 For all Goods that qualify for application of Regional or Free
Trade Agreements, General Systems of Preference or other
preferential arrangements, it is the responsibility of the Supplier to
deliver products with the appropriate documentary evidence
(e.g. Supplier’s declaration, preferential origin certificate/invoice
declaration) to confirm the preferential origin status.
18.3 Supplier shall mark every Good (or the Good’s container if
there is no room on the Good itself) with the country of origin.
Supplier shall, in marking the Goods, comply with the requirements
of the customs authorities of the country of receipt. If any Goods
are imported, Supplier shall when possible allow Plasmacure to be
the importer of record. If Plasmacure is not the importer of record
and Supplier obtains duty drawback rights to the Goods, Supplier
shall, upon Plasmacure request, provide Plasmacure with
documents required by the customs authorities of the country of
receipt to prove importation and to transfer duty drawback rights
to Plasmacure.
19. Limitation of Liability
19.1. Neither Party excludes or limits its liability for death
or personal injury arising from its own negligence, fraud, or for
any liability that cannot by law be excluded or limited.
19.2 Subject to Clause 19.1, IN NO EVENT SHALL PLASMACURE
SUCH DAMAGES and in no event shall Plasmacure be liable to
Supplier, its successors or assigns for damages in excess of the
amount due to Supplier for complete performance under the
Agreement, less any amounts already paid to Supplier by
20. Force Majeure
In the event that Supplier is prevented from performing any of its
obligations under the Agreement for reason of force majeure
(being an event unforeseeable and beyond the control of Supplier)
and Supplier has provided sufficient proof for the existence of
the force majeure, the performance of the obligation concerned
shall be suspended for the duration of the force majeure.
Plasmacure shall be entitled to terminate the Agreement with
immediate effect by written notice to Supplier, immediately if the
context of the non- performance justifies immediate termination,
and in any event if the circumstance constituting force majeure
endures for more than thirty (30) days and, upon such notice,
Supplier shall not be entitled to any form of compensation in
relation to the termination. Force majeure on the part of Supplier
shall in any event not include shortage of personnel or
production materials or resources, strikes, not officially declared
epidemic or pandemic, breach of contract by third parties
contracted by Supplier, financial problems of Supplier, nor the
inability of Supplier to secure the necessary licenses in respect of
software to be supplied or the necessary legal or administrative
permits or authorizations in relation to the Goods or Services to
be supplied.
21. Suspension and Rescission
21.1. Without prejudice to any other right or remedy available to
Plasmacure under the Agreement or at law, Plasmacure shall be
entitled at its discretion to suspend the performance of its
obligations under the Agreement in whole or in part or to
declare the Agreement rescinded in whole or in part by means
of written notice to Supplier in the event that:
(a) Supplier files a voluntary petition in bankruptcy or any
voluntary proceeding relating to insolvency, receivership,
liquidation, assignment for the benefit or creditors or similar
(b) Supplier becomes the subject of a petition in bankruptcy
or any proceeding relating to insolvency, receivership,
liquidation, assignment for the benefit of creditors or similar
(c) Supplier ceases or threatens to cease to carry on business in
the ordinary course;
(d) Supplier breaches any of its obligations under the
Agreement or Plasmacure’, in its reasonable discretion,
determines that Supplier cannot or shall not deliver the
Goods or perform the Services as required; or
(e) Supplier fails to provide adequate assurance of
performance following request by Plasmacure.
21.2. Plasmacure shall not be liable to Supplier by virtue of
exercising any of the rights under Clause 21.1.
Plasmacure General Conditions of Purchase
Version 1.0 – 01 APRIL 2020
22. Confidentiality
22.1. Supplier shall treat all information provided by or on
behalf of Plasmacure or generated by Supplier for Plasmacure
under the Agreement as confidential. All such information shall
be used by Supplier only for the purposes of the Agreement.
Supplier shall protect Plasmacure’ information using not less than
the same degree of care with which it treats its own confidential
information, but at all times shall use at least reasonable care. All
such information shall remain the property of Plasmacure and
Supplier shall, upon Plasmacure’ demand, promptly return to
Plasmacure all such information and shall not retain any copy
22.2. The existence and the contents of the Agreement shall be
treated as confidential by Supplier.
23. Miscellaneous
23.1. Supplier will maintain comprehensive or commercial
general liability insurance (including products liability, property
damage and personal injury liability, and any other liability as
may be requested by Plasmacure) with, unless otherwise agreed
by Plasmacure, a minimum limit of five million Euro for claims of
bodily injury, including death, and any other damages that may
arise from use of the Goods or Services or acts or omissions of
Supplier under the Agreement. Such insurance policies will be
written with appropriately licensed and financially responsible
insurers. Supplier shall inform Plasmacure of any cancellation or
reduction in coverage with a minimum of 30 days prior written
notice. Certificates of insurance evidencing the required
coverage and limits and insurance policies shall be furnished to
Plasmacure upon Plasmacure’s request.
23.2. Supplier shall provide Goods and render Services
hereunder as an independent contractor and not as an agent of
Plasmacure and nothing contained in the Agreement is intended
to create a partnership, joint venture or employment relationship
between the parties irrespective of the extent of economic
dependency of Supplier on Plasmacure.
23.3. Supplier shall not subcontract, transfer, pledge or assign
any of its rights or obligations under the Agreement without the
prior written consent of Plasmacure. Any such pre-approved
subcontracting, transfer, pledge or assignment shall be null and
void and have no effect vis-à-vis such third party.
23.4. The rights and remedies reserved to Plasmacure are
cumulative and are in addition to any other or future rights and
remedies available under the Agreement, at law or in equity.
23.5. Supplier shall provide Plasmacure written notice of all
product discontinuances twelve (12) months prior to the last order
date, including as a minimum Plasmacure part numbers,
substitutions, and last order and shipment dates.
23.6. Neither the failure nor the delay of Plasmacure to enforce any
provision of the Agreement shall constitute a waiver of such
provision or of the right of Plasmacure to enforce each and every
provision of the Agreement. No course or prior dealings between
the parties and no usage of the trade shall be relevant to determine
the meaning of the Agreement. No waiver, consent, modification
or amendment of the terms of the Agreement shall be binding
unless made in a writing specifically referring to the Agreement
signed by Plasmacure and Supplier.
23.7. In the event that any provision(s) of these General
Conditions of Purchase and of the Agreement shall be held
invalid, unlawful or unenforceable by a court of competent
jurisdiction or by any future legislative or administrative action,
such holding or action shall not negate the validity or enforceability
of any other provisions of the Agreement. Any such provision held
invalid, unlawful or unenforceable, shall be substituted by a
provision of similar import reflecting the original intent of the
clause to the extent permissible under applicable law.
23.8. All terms and conditions of the Agreement which are
destined, whether express or implied, to survive the termination
or the expiration of the Agreement, including but not limited
to Warranty, Intellectual Property, Confidentiality and Personal
Data, shall survive.
23.9. The Agreement shall be governed by and construed in
accordance with the laws of the country or state in which the
Plasmacure ordering entity is located, as applicable.
23.10. Supplier and Plasmacure each consents to the exclusive
jurisdiction of the competent courts in (i) the country or state in
which the Plasmacure ordering entity is located; or (ii), at the
option of Plasmacure, the jurisdiction of the entity of Supplier
to which the order was placed, or (iii), at the option of
Plasmacure, for arbitration in which case Clause 23.12 applies.
Supplier hereby waives all defenses of lack of personal
jurisdiction and forum non-convenience.
23.11. If so chosen by Plasmacure in accordance with Clause
23.10, any dispute, controversy or claim arising out of or in
connection with this Agreement, or their breach, termination or
invalidity shall be finally settled solely under the International
Chamber of Commerce Rules of arbitration, which Supplier and
Plasmacure declare to be known to them. Supplier and Plasmacure
agree that: (i) the appointing authority shall be the ICCInternational
Chamber of Commerce of Paris, France; (ii) there
shall be three (3) arbitrators; (iii) arbitration shall take place in the
jurisdiction of the Plasmacure ordering entity or, at the option of
Plasmacure, the jurisdiction of the Supplier’s entity having received
the order; (iv) the language to be used in the arbitration
proceedings shall be English; and (v) the material laws to be applied
by the arbitrators shall be the laws as determined under Clause
23.12. The United Nations Convention on International Sale of
Goods shall not apply to the Agreement.