These Sales Terms and Conditions shall apply to all orders for pharmaceuticals placed with Pfizer Pharma GmbH. All sales shall be subject to said Sales Terms and Conditions exclusively. Contradictory Terms and Conditions of Purchase shall not become integral parts of the Agreement unless we have expressly consented to their application in writing.
For any deviating or supplementary agreements to become effective, same shall be made in writing.
All orders placed for requisitions of hospitals and pharmaceutical wholesalers are to be directly sent to Pfizer Pharma GmbH.
Purchase orders of pharmaceutical wholesalers are subject to a minimum quantity per PZN and per order, to meet the demand of and secure the continuous delivery to the German market.
Direct purchase orders of public pharmacies shall also be placed with the known contact addresses of Pfizer Pharma GmbH.
Pharmaceuticals for hospital use shall be shipped exclusively to supplier pharmacies and hospital pharmacies pursuant to corresponding supply agreements and for the in-house utilization by hospitals. Reference is made to the respective distribution liaison agreements. Any changes to said supply agreements or government agency approvals shall be communicated to us.
Any consolidated packaging designated as such and pharmaceuticals packages shipped to hospital and supply pharmacies shall not be separated into individual sales units and shall not be dispensed to patients except within the scope of hospital treatment.
Orders placed by the Buyer shall be considered binding offers. We shall have the right to accept this offer by submitting a respective order confirmation or by delivering the ordered goods.
All deliveries shall be processed for the account and at the risk of the Buyer. The place of shipment shall be the place of fulfillment. Deliveries shall be executed freight/postage prepaid through a service of our choice. In the event that the Buyer should require express shipping, same shall be done at the expense of the Buyer.
Delivery dates shall be deemed binding only if they have been confirmed by us as binding delivery dates. In the event that we should be in default of delivery, we shall assume liability only in the event of acts of intent and gross negligence.
The Buyer shall undertake to refrain from directly or indirectly exporting products acquired from Pfizer Pharma GmbH into countries outside of the European Economic Area (EEA).
The Buyer shall furthermore undertake not to sell or otherwise make available to a third party without having also committed said third party to compliance with this prohibition to export.
Moreover, the Buyer shall also undertake not to sell or otherwise make available said products to any third party if the Buyer knows or has a reason to presume that this third party will export said products from the EEA or that there is a possibility that the third party could export them accordingly.
Any violation of the prohibitions stipulated in Para 3,4 or 5 above shall result in the Buyer’s exclusion from the eligibility to purchase further Pfizer Pharma GmbH products until Pfizer Pharma GmbH is convinced that the Buyer will not violate this export prohibition again. Any failure to execute or pursue the rights arising from said provision by either of the parties shall not constitute a waiver of said rights nor shall it result in a future loss of said rights. For any waiver of the application of the prohibitions included in this provision to be effective, same shall be made in writing and shall require the signature of the contracting parties agreeing to the waiver.
The seller prices in effect at the time of delivery shall apply.
The invoice amount shall be due for payment within 30 days as of the invoice date net. In the event that payment should be made within 10 days after the invoice date, a cash discount of 1.5 % shall be granted. In the event that the Buyer should be in default of payment, we shall have the right to charge late payment interest in the amount of 3 % p.a. above the corresponding rediscount rate published by the German Federal Reserve. In the event that we should be in a position to present evidence that we have incurred higher damages due to the late payment, we shall have the right to claim same. However, the Buyer shall have the right to evidence to us that the late payment did not cause us any or substantially lower damages.
We reserve the right to ship cash on delivery or against payment in advance only.
The Buyer shall have the right to set off against our receivables only Buyer receivables that are undisputed or that have been finally adjudged by a court of law.
Retention of Title
Our deliveries shall be made exclusively under retention of title. Title shall transfer to the Buyer only once all amounts owed by the Buyer from the business relationship, including ancillary receivables that are in existence at the time this Agreement is executed, have been paid off. The Buyer shall not be authorized to pledge the goods to any third parties or to assign same as collateral security The Buyer shall, however, have the right to sell the goods within the scope of regular business transactions. The receivables generated from the resale to third parties shall herewith be assigned to us by the Buyer as collateral security for any and all debts owed to us at the time the Agreement is made. In the event that the Buyer is collecting said assigned receivables on our behalf, the Buyer shall be required to surrender same to us as soon as our receivables come due. Garnishments or other attachments to our goods or rights by any third parties shall be communicated to us immediately.
We shall undertake to release any collateral securities we are entitled to upon Buyer’s request if their value exceeds the receivables to be securitized, provided same have not been paid off, by more than 20 %.
Right to Return
For any and all initial stock orders placed in conjunction with the launch of new products by us with pharmaceuticals wholesalers, we shall grant the Buyer a limited right to return same. In the event that this right to return should be utilized, the return shall be completed within 6 months after the date of invoice. Upon receipt of same and once the returned packages have been found to be in good condition, a credit note shall be issued for the full invoice amount. In other respects, the return of packages ordered and purchased for credit or exchange shall not be possible.
Warranty for Defects
Claims based on incomplete or incorrect shipments as well as notifications of defects, provided same are obvious, shall be made immediately and not later than within 8 business days after the delivery of the goods. Such claims and notifications shall be submitted to us in writing. We shall have the right to demand the submission of a sample of the product the claim is based upon, and if applicable, the return of all of the goods that are subject to the claim, at our expense.
In the event that the object of purchase should have inherent defects we are responsible for, we shall have the right – at our discretion – to either eliminate the defect or replace the object.
We shall make reimbursements for consequential damages only if we have caused same as a result of acts of intent and gross negligence.
The Buyer herewith consents to the archiving, processing and transfer of data concerning goods and payment transactions by Pfizer Pharma GmbH.
Place of Jurisdiction
All legal disputes arising from this Agreement shall be assigned to the jurisdiction of the competent first instance courts in Berlin, Germany.
The Buyer agrees and warrants the following:
- The Buyer will observe the attached Pfizer Anti-Bribery and Anti-Corruption Policy when fulfilling the Agreement.
- The Buyer shall ensure and warrant that neither the Buyer nor the Buyer’s staff shall directly or indirectly promise or offer a Government Official (definition see attached “Pfizer Anti-corruption Guidelines”) any advantages that meet the parameters of corruption, nor shall the Buyer or the Buyer’s staff approve same or make any other illegal attempts at influencing a Government Official. Moreover, the Buyer affirms that neither the Buyer nor the Buyer’s staff have done any of the aforementioned. In the event that the Buyer should be a Government Official, the Buyer herewith affirms that the Buyer has not accepted any such advantage in the past and that the Buyer shall not do so in the future.
- that for the duration of this Agreement and for a reasonable period after its expiration, which shall not exceed a term of three years, employees of Pfizer and/or agents of Pfizer shall be granted access to all relevant business files, documents and records of the Contract Partner that are related to the business transactions mentioned in this Agreement during normal business hours and upon making a timely appointment.
Pfizer Pharma GmbH shall have the option to terminate this Agreement by written notice to the Buyer without having to comply with any notice period if Pfizer Pharma GmbH becomes aware of any breaches of the Pfizer Anti-Corruption Principles by the Buyer or the Buyer’s staff and if the Buyer should be unable to disprove the suspicions of such a violation. In the event that Pfizer Pharma GmbH should terminate this Agreement pursuant to this Section, the Buyer shall not have any recourse in the form of severance and further payments, regardless of any activities or agreements with additional third parties that have been made prior to the termination of the Agreement. Moreover, the Buyer shall be liable for damage compensation and shall be required to absorb the costs of any and all litigation.
Issued on September 30, 2009
PFIZER ANTI-CORRUPTION PRINCIPLES
The Corporate Policy ‡ 201 (Lawful and Ethical Behavior) provides that Pfizer colleagues must conduct all Pfizer business in a lawful and ethical manner, in accordance with applicable laws and regulations, as well as in full compliance with corporate policies and procedures. These specifically address anti-bribery procedures designed to support compliance with the U.S. Foreign Corrupt Practices Act of 1977 (the FCPA). The FCPA prohibits making, promising, or authorizing the making of a corrupt payment or providing anything of value to a Government Official to induce that official to make any governmental act or decision to assist a company in obtaining or retaining business. The FCPA also prohibits a company or person from using another company or individual to engage in any of the foregoing activities. As a U.S. company, Pfizer Inc. must comply with the FCPA and may be held liable for violations of the FCPA as a result of acts of third parties (hereinafter called business partners) committed anywhere in the world by someone acting on behalf of Pfizer.
Pursuant to this guideline, third parties may be external natural entities, legally competent general partnerships (German OHG), legal entities (LLC, Inc.), registered associations or all other types of corporations that perform their activities under one of the aforementioned forms of organization. Consequently, Pfizer requires all of its business partners to perform all Pfizer-related business activities in compliance with said principles.
Definition of "Government Officials"
The term government official is used within the scope of Pfizer’s Anti-Corruption Procedure, which aims at the aversion of bribery and corruption in reference to government officers, employees and individuals in Germany who
- are government officials holding the position of government officers or judge pursuant to German law, civil servants who are employed in any other public law agency position or who have been otherwise appointed to carry out tasks of public administration at another entity or on behalf of such other entity regardless of the organizational structure chosen for the fulfillment of such assignments; or
- perform public administrative tasks as healthcare partners as described in (1); or
- who act as functionaries for or in the name of a political party or an international organization.
Government officials pursuant to §§ 331 subsequent StGB [German penal code] are not only employees of medical facilities who are employed as government officer or public law staff. Employees of facilities that are private law organizations (Hospital LLC or Inc.) may be government officials as well , if they are assigned to sovereign tasks – for instance in research or patient care. Pursuant to the statute on the prevention of international bribery, the term government officials also pertains to foreign government officials.
FCPA, Anti-Corruption and Anti-Bribery Principles
Business partners are not allowed to make, promise or authorize directly or indirectly the making of any corrupt payments and they shall also not be permitted to make available to a Government Official any advantages in a manner that would constitute an act of corruption with the objective of inducing the relevant Government Official to take any government action or make a decision that assists Pfizer to obtain or retain business. This means that business partners are prohibited from ever making a payment to a Government Official and from ever granting such an official any tangible or intangible position of advantage, regardless of the value, if such a Government Official is not legally entitled to same and if it serves as an unfair inducement to obtain approval for a Pfizer product, or reimbursement of its costs through a health insurance provider or to prescribe it, or to influence the outcome of a clinical trial or to support the business activities of Pfizer in any other unfair manner.
Understanding of and Compliance with Local Statutes
In conjunction with their business activities on behalf of Pfizer, business partners shall be required to comply with all applicable laws, guidelines and provisions. Besides the provisions stipulated in the Agreement, this shall, in particular, comprise the code of the members of the association "Freiwillige Selbstkontrolle für die Arzneimittelindustrie e.V." [≈Voluntary Self-Auditing Association of the Pharmaceutical Industry] and the "Gemeinsamer Standpunkt zur strafrechtlichen Bewertung der Zusammenarbeit zwischen Industrie, medizinischer Einrichtungen und deren Mitarbeiter" [≈Joint Opinion on the Criminal Assessment of the Collaboration Between Manufacturers, Medical Facilities and Their Employees], which may be reviewed at www.fsa-pharma.de.
When performing any Pfizer-related activities, business partners shall be required to take into account and comply with any and all applicable restrictions. In the event that a business partner should have any misgivings in reference to the meaning or applicability of defined limits, restrictions or disclosure obligations related to interactions with Government Officials, said business partner should discuss the matter with his or her primary contact at Pfizer before pursuing any such activities.
Issued on September 30, 2009