Terms and Conditions of Purchase 2009
In these Conditions, except where a different interpretation is necessary in the context, the parties shall be referred to in the manner set out below and the following expressions shall have the following meanings:
- means Generics UK Limited trading as MYLAN.
- means the terms and conditions of purchase set out in this document together with any special terms and conditions agreed in writing between MYLAN and the Supplier.
- "the Contract"
- means the Order and the Conditions and any Drawings or other documents which are attached or referred to in the Order or which relate to the Goods ordered.
- means the goods or any of them described in the Order including any materials, articles, plant, equipment, products or services or any of them to be supplied to MYLAN pursuant to the Contract.
- the requirements of MYLAN issued by MYLAN to the Supplier on the official purchase order form of MYLAN to which these Conditions are annexed or otherwise issued by MYLAN in writing to the Supplier;
- the person, firm or company to whom the Order is addressed
2. Basis of Purchase
- The Order constitutes an offer by MYLAN to purchase the Goods subject to the Conditions.
- Except in respect of fraudulent misrepresentation, these Conditions alone govern and are incorporated in every contract or other course of dealings made or undertaken by MYLAN with the Supplier. They apply in place of and prevail over any terms or conditions, (whether or not in conflict or inconsistent with these Conditions), contained or referred to in any quotation or other documentation submitted by the Supplier or in correspondence or elsewhere or implied by trade custom, practice or course of dealing unless specifically excluded or varied in writing by a director or other authorised representative of MYLAN and any purported provisions to the contrary are hereby excluded or extinguished and any similar provision in the Supplier’s terms and conditions shall be of no effect.
- Any variation of these Conditions is valid only if it is in writing and signed by or on behalf of each of the Supplier and MYLAN. No other action on the part of MYLAN, whether by accepting Goods or otherwise, shall be construed as an acceptance of any other conditions.
3. Ordering Procedure and Orders
- MYLAN may place Orders for its requirements of Goods in writing on MYLAN's official purchase order form. The date and place of delivery may be altered by MYLAN from time to time by written notice to the Supplier. The Supplier must not make any changes whatsoever in the colour, specification, design or composition of the Goods once ordered without the prior written consent of MYLAN.
- Each Order for Goods by MYLAN from the Supplier is deemed to be an offer by MYLAN to purchase Goods subject to these Conditions and no Order is binding on MYLAN unless and until the Supplier either expressly by giving notice of acceptance, or impliedly by fulfilling the Order, in whole or in part accepts the offer.
- The Supplier must immediately inform MYLAN if the Supplier knows or believes that it will not be, or is unlikely to be, able to deliver all or any of the Goods by the date required on the Order and MYLAN is entitled to cancel any Order placed without liability and without prejudice to any other right or remedy.
- All Goods must be delivered Carriage and Insurance Paid (as that term is defined in Incoterms 2000 Edition) to the address stated on the Order or otherwise notified to MYLAN (“Delivery Address”) except where any provision of these Conditions expressly provides otherwise or unless otherwise agreed in writing. All prices, unless otherwise stated, include packing, crates, packaging and delivery.
- The Goods ordered by MYLAN are at the Supplier's risk until delivered to the Delivery Address.
- Delivery must be made by the Supplier during MYLAN’s normal working hours (between 8 am and 4 pm Monday to Friday) or as requested by MYLAN. MYLAN accepts no responsibility for Goods delivered outside these times.
- The title in the Goods passes to MYLAN on proper delivery to the Delivery Address, whether or not MYLAN has made payment in respect of them, unless payment of the Goods is made prior to delivery, in which case title passes to MYLAN once payment has been made and the Goods have been appropriated to the Contract. The Supplier will indemnify MYLAN against any third party claims regarding title of goods.
- Each consignment of Goods ordered by MYLAN must be delivered in full by the due date stipulated by MYLAN and time is the essence of the Agreement. The date for delivery is as specified in the Order, or if no such date is specified then the Supplier shall request a date for delivery from MYLAN and MYLAN will provide such date for delivery to the Supplier. If any Order is only partially fulfilled by the agreed date, then MYLAN reserves the right, without prejudice to any other remedy, either to accept or reject those Goods that have been delivered and, in either case, to cancel the Order in respect of those that have not been delivered on time and to apportion the price accordingly.
- All Goods delivered must be accompanied by a despatch note or a consignment note and a packing note quoting the Order reference number (and any relevant part number) which must be displayed prominently. Any indication by MYLAN on delivery that a consignment accords with the consignment note shall not be taken as indicating that MYLAN has accepted the Goods.
- MYLAN is entitled to reject any Goods delivered which are not in accordance with the Contract within 60 days of the defect coming to its attention.
- The Supplier bears the risk in respect of any rejected Goods. MYLAN is entitled to charge the Supplier a daily storage charge for the period in which any rejected Goods remain uncollected.
- If the Supplier fails to deliver the Goods ordered by MYLAN in full or in part or to make delivery within the period specified, then the Supplier is liable to indemnify and reimburse MYLAN fully for its loss or damage directly or indirectly attributable to the delay in delivery or failure to deliver, including (without limitation) any expenditure reasonably incurred by MYLAN which are in any way attributable to the Supplier's failure to deliver the Goods on the due date.
5. The Goods
- The Supplier warrants, represents and undertakes to MYLAN that the Goods delivered or supplied:
- will comply with the Contract and/or any specifications issued in connection therewith in quantity, quality and description for the Supplier's guarantee period whichever is the longer;
- will be of satisfactory quality and fit for any purpose for which they are supplied and held out by the Supplier and for which they are commonly used;
- will be free from defects in design, material and workmanship;
- will conform with all relevant legal and statutory requirements including, but without limitation, the Trades Descriptions Act 1968, the Health and Safety at Work Act 1974, the Consumer Safety Act 1978, the Sale and Supply of Goods Act 1994, the Weights and Measures Act 1985, the Consumer Protection Act 1987 and any amendments, modifications, re-enactments and regulations made under any of those acts;
- will be in accordance with the latest current issue of any relevant British Standards, Specifications and Codes of Practice, as at the date of the Order and of delivery or supply unless agreed otherwise in writing.
The warranties set out in this Condition 5.1 will continue in force notwithstanding the acceptance or use by the Company of the Goods.
- Without prejudice to any other remedy, if any Goods are not supplied in accordance with the Contract then MYLAN is entitled:
- to require the Supplier to supply replacement Goods in accordance with the Contract within 7 days; or
- at MYLAN's sole option, and whether or not MYLAN has previously required the Supplier to supply any replacement Goods, to treat the Contract as discharged by the Supplier's breach and require the repayment of any part of the price which has been paid and any sums due pursuant to Condition 5.3.
- The Supplier must indemnify MYLAN in full against all direct, indirect or consequential liability, loss, (including loss of profits or business) damages, costs and expenses (including legal expenses) awarded against or incurred or paid by MYLAN as a result or in connection with:
- a breach of any warranty given by the Supplier in relation to the Goods or warranty or term of the Contract;
- any claim that the Goods or their importation, use or resale, infringes the patent, copyright, design right, trade mark or other intellectual property rights of any other person;
- any claim arising from injury to person (except where solely caused by MYLAN's negligence) or damage to property arising from the use of the Goods or the fulfilment of the Contract or sustained by the Supplier, its employees or agents while on MYLAN's premises.
- The Company's rights under these Conditions are in addition to the statutory conditions implied in favour of MYLAN by the Sale of Goods Act 1979.
- The price of the Goods will be as stated in the Order and, unless otherwise stated is:
- exclusive of any applicable value added tax (which shall be payable by MYLAN subject to receipt of a VAT Invoice); and
- inclusive of all charges for packaging, package, carriage, insurance and delivery of the Goods to the Delivery Address and any duties, taxes or levies other than Value Added Tax.
- No increase in the price may be made, whether on account of increased material, labour or transport costs or otherwise, without the prior written consent of MYLAN in writing.
- The Company is entitled to the benefit of any discount for prompt payment, bulk purchase or volume of purchase customarily granted by the Supplier, whether or not shown on its own terms and conditions of sale.
- The Supplier may invoice MYLAN on or at any time after proper delivery of the Goods and each invoice must quote the order reference number (and any part number) accompanied by a full detailed statement.
- Unless otherwise stated in the Order, MYLAN will pay the price of the Goods within 60 days from the last day of the month in which the invoice is issued pursuant to Condition 7.1 but time for payment is not of the essence.
- Without prejudice to any other right or remedy, MYLAN is entitled to set off against the price of the Goods any sums owed to MYLAN by the Supplier.
- If MYLAN fails to pay the price of the Goods within 60 days from the last day of the month in which the invoice is issued, in accordance with Condition 7.2, other than in the case of a bona fide dispute, MYLAN shall pay interest on the overdue sum for the period from and including the date of the invoice up to the date of actual payment in accordance with clause 7.5.
- The interest referred to in clause 7.4 shall be paid at the rate of 4% above the base rate from time to time of Barclays Bank plc.
- Notwithstanding MYLAN's right to cancel the Order for cause as referred to elsewhere in these Conditions (in which case MYLAN shall have no liability) MYLAN is entitled by written notice to cancel the Order at its convenience without fault on the part of the Supplier in respect of all or part only of the Goods by giving notice to the Supplier at any time prior to delivery or performance, in which event MYLAN's sole liability is to pay to the Supplier the lesser of:
MYLAN will not be liable to the Supplier for any loss of anticipated profits or any consequential loss.
- the price for the Goods in respect of which MYLAN has exercised its right of cancellation, less the Supplier's net saving of cost arising from cancellation; and
- the reasonable costs of production to the Supplier of the Goods in respect of which MYLAN has exercised its right of cancellation from the date of the Order to the date of cancellation where the Goods (or any materials comprised within them) cannot reasonably be used by the Supplier itself or for any other customers, less the price of the Goods which will or can be expected to be obtained by the Supplier on the ultimate sale of such Goods.
- MYLAN is entitled to terminate the Contract with immediate effect by written notice if the Supplier becomes unable to pay its debts as they fall due, or the value of its assets is less than the amount of its liabilities taking into account its contingent and prospective liabilities; or a statutory demand is served, a receiver is appointed or any insolvency procedure under the Insolvency Act 1986 is instituted or occurs; or if the Supplier commits a material breach of the Contract or any other contract between MYLAN and the Supplier.
- If any of the events described in Condition 8.2 occurs MYLAN is entitled without prejudice to any of its other rights to avail itself of any one or more of the following remedies at its discretion, whether or not any part of the Goods have been accepted by MYLAN:
- to rescind the Order;
- to reject the Goods (in whole or in part) and return them to the Supplier at the risk and cost of the Supplier on the basis that a full refund for the Goods so returned will be paid immediately by the Supplier;
- at MYLAN's option to give the Supplier the opportunity at the Supplier's expense either to remedy any defect in the Goods or to supply replacement Goods and carry out any other necessary work to ensure that the terms of the Contract are fulfilled;
- to refuse to accept any further deliveries of the Goods but without any liability to the Supplier;
- to carry out at the Supplier's expense any work necessary to make the Goods comply with the Contract; and
- to claim such damages as may have been sustained in consequence of the Supplier's breach or breaches of the Contract.
- All provisions of this Agreement which in order to give effect to their meaning need to survive the termination of the Agreement in whole or in part will remain in full force and effect after such termination.
9. Ownership of property
- All Drawings, dies, moulds, tooling and other proprietary information (including without limitation know-how, specifications, inventions, processes or initiatives) ("Information") either furnished by MYLAN to the Supplier or created or provided by the Supplier for the purpose of the Contract must remain the property of MYLAN and the Supplier must treat such Information as strictly confidential, must keep it safely and must not use nor disclose it except as strictly required in the course of performance of the Contract.
- Unless MYLAN has otherwise agreed in writing, all Information prepared by the Supplier in connection with the Contract will be MYLAN's sole property and MYLAN may reproduce and use such Information freely for any purposes whatsoever.
- Any communication to be given in connection with this Contract must be in writing in English and must (unless otherwise set out in this Condition) either be delivered by hand or sent by [first class/registered or recorded] post (airmail if to an address outside the United Kingdom) or fax to the address of the relevant party. For the purposes of clauses 3.1 and 8.1, the Company shall be entitled to deliver communications by email to the email address provided by the Supplier.
- In the absence of evidence of earlier receipt, a communication sent according to this Condition will be deemed to have been received:
If, under the preceding provisions of this Condition, a communication would otherwise be deemed to have been received outside normal business hours in the place of receipt, being 9:30am to 5:30pm on a day other than a Saturday, Sunday or public holiday in England and Wales ("Business Day"), it shall be deemed to have been received at 9:30am on the next Business Day.
- if delivered by hand, at the time of delivery; or
- if sent by first class post, on the second day after posting; or
- if sent by airmail, on the sixth day after posting; or
- if sent by fax, at the time of completion of transmission by the sender.
- A waiver of any right or remedy must be in writing and signed by the grantor. An omission to exercise or delay in exercising any right or remedy shall not constitute a waiver of that right or remedy. No waiver by MYLAN of any right or remedy shall constitute a continuing waiver of that right or remedy or a waiver of any other right or remedy and no action by MYLAN in respect of any breach will be deemed to bind MYLAN to take the same action in respect of future breaches.
- The Company may, but the Supplier may not, without the prior written consent of MYLAN:
Any purported assignment, transfer sub-contracting, delegation, charging or dealing in contravention of this Condition 10.4 shall be ineffective. These Conditions are personal to the Buyer and are entered into by the Buyer for its own benefit and not for the benefit of another third person or party.
- assign any of its rights under these Conditions; or
- transfer any of its obligations under these Conditions; or
- sub-contract or delegate any of its obligations under these Conditions; or
- charge or deal in any other manner with these Conditions or any of its rights or obligations.
- If any provision of these Conditions is held to be invalid or unenforceable by any judicial or other competent authority, all other provisions of these Conditions will remain in full force and effect and will not in any way be impaired. If any provision of these Conditions is held to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, or the period of the obligation reduced in time or the range of activities or area covered reduced in scope the provision in question will apply with the minimum modifications necessary to make it valid and enforceable.
- The Supplier must not without the prior written permission of MYLAN advertise or announce that it supplies Goods to MYLAN and shall discontinue any such permitted advertisement or announcement on demand.
- The Supplier will at all times insure and keep itself insured with a reputable insurance company against all insurable liability under the Contract or in respect of the Goods and shall produce on request by MYLAN the policy of such insurance and the premium receipts.
- The clause headings used in these Conditions are inserted for ease of reference only and do not affect construction.
- References to "writing" or "written" includes any other non-transitory form of visible reproduction of words.
- References to persons include bodies corporate, unincorporated associations and partnerships, in each case whether or not having a separate legal personality.
- References to the word "include" or "including" (or any similar term) are not to be construed as implying any limitation and general words introduced by the word "other" (or any similar term) will not be given a restrictive meaning by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things and all definitions in clause 1.1 will apply, where the context requires, to cognate forms and plural and singular forms, and any other forms.
- Except where the context specifically requires otherwise, words importing one gender will be treated as importing any gender, words importing individuals will be treated as importing corporations and vice versa, words importing the singular will be treated as importing the plural and vice versa, and words importing the whole will be treated as including a reference to any part thereof.
- References to statutory provisions, enactments or EC Directives will include references to any amendment, modification, extension, consolidation, replacement or re-enactment of any such provision, enactment or Directive (whether before or after the date of this Agreement), to any previous enactment which has been replaced or amended and to any regulation, instrument or order or other subordinate legislation made under such provision, enactment or Directive.
12. Governing Law and Jurisdiction
The Contract is governed by and is to be construed in accordance with English law. The parties irrevocably agree that the courts of England and Wales will have exclusive jurisdiction to settle any dispute, which may arise out of or in connection with the Contract.