GENERAL TERMS OF PURCHASE AND DELIVERY (JULY 1, 2021)
GENERAL TERMS OF DELIVERY
1. General regulations
- All of our deliveries and services shall exclusively be carried out based on the General Terms of Delivery described herein. We shall not recognise deviating terms and conditions of the buyer unless we have explicitly approved their validity in writing. Our General Terms of Delivery shall also apply if we carry out the delivery to the buyer without reservation in the knowledge of contradictory terms and conditions of the buyer or terms and conditions which deviate from our Terms of Delivery.
- Our General Terms of Delivery shall only apply towards entrepreneurs within the meaning of § 310 Par. 1 BGB [German Civil Code].
- Our General Terms of Delivery shall also apply to all future business transactions with the buyer.
- Individual agreements reached with the buyer in an individual case (including collateral agreements, addendums and amendments) shall in any case have precedence over these General Terms of Delivery. A written contract respectively our written confirmation is decisive for the contents of such agreements.
2. Offer and order confirmation (conclusion of the contract)
- Our offers are without obligation.
- We are entitled to accept the offer contained in the order within three workdays (Monday to Friday) after receipt by us. The acceptance can either be declared in writing (by an order confirmation) or by delivery of the goods.
- (Goods) descriptions or supplements, which are made in an offer or in connection with an offer, are only approximate values. We reserve the right to changes regarding the equipment and design of the ordered goods insofar as no substantial or unreasonable change in function for the buyer occurs to the goods by these changes or a condition otherwise agreed with the buyer.
3. Prices and terms of payment
- Insofar as not otherwise derived from the order confirmation, our prices shall apply ex works (“EXW”), if applicable plus the applicable rate of value added tax. Costs for packaging, freight, insurances and customs fees will be invoiced separately. Partial deliveries can be charged separately.
- All payments are to be made immediately in the full amount after receipt of the invoices, without deductions, rebates or charges; the deduction of cash discount requires a special written agreement. Incidentally, the statutory regulations shall apply relating to the consequences of the default of payment.
- The withholding of payments owing to counterclaims of the buyer is neither permitted, nor the offsetting against such counterclaims; this shall not apply to counterclaims if they are undisputed or have been declared final and binding.
4. Terms of delivery
- Notified delivery dates are non-binding unless we have not described these as “binding” in writing. If a binding delivery date has been agreed, it is sufficient if we place the goods for shipment on this day.
- The date for the delivery of the goods shall begin as soon as all documents, which are necessary for the order, have been received and shall be deemed as satisfied as soon as the goods have left the plant at the close of the delivery date or the buyer has been informed of the provision of the goods.
- If we are prevented from the satisfaction of our delivery obligation after conclusion of the contract by the occurrence of unforeseen unusual circumstances, which we could not avoid despite showing the care and attention, which are deemed reasonable for us (e.g. interferences to operation, official sanctions and interventions, delays in delivery with essential raw materials, energy supply difficulties, strike, lock-out) then – insofar as these circumstances lead to delays – the delivery deadline shall be extended by a reasonable extent. If the delivery becomes impossible by these circumstances, we shall be exempted from the delivery obligation.
- We are entitled to carry out partial or follow-up deliveries to a reasonable extent.
- Insofar as the object of the delivery falls under the pharmacy obligation according to § 43 AMG [German Pharmaceutical Act], they may only be supplied to pharmacies for sale to end consumers; the pharmaceutical wholesale trade may only deliver to these retail companies. The sales to the retail or wholesale trade outside of pharmacies are insofar prohibited.
5. Passing of risk
- Insofar as not otherwise derived from the order confirmation the delivery "ex works" (“EXW”) is agreed.
- In case of shipment of the goods at the request of the buyer the risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at time of the dispatch.
- Insofar as requested by the buyer we shall cover the delivery by transport insurance; the costs thus incurred shall be borne by the buyer.
6. Liability for defects
- Rights due to defects of the buyer presume that it has properly satisfied its responsibilities for inspection and report of defects owed according to § 377 HGB [German Commercial Code].
- Insofar as a defect exists to the object of purchase, we will deliver a new faultless object. In an individual case we reserve the right to subsequent satisfaction in the form of subsequent improvement. We are always obliged to bear all expenses, which are necessary for the purpose of subsequent satisfaction, in particular transport, route, labour and material costs, insofar as these are not increased by the fact that the object of purchase was taken to another location than the place of performance.
- If the subsequent satisfaction fails then the buyer is entitled, at its choice, to request cancellation or reduction.
- We shall be liable according to the statutory provisions, insofar as the buyer asserts claims for damages, which are due to wilful intent or gross negligence, including wilful intent or gross negligence of our representatives or vicarious agents. Insofar as we are not accused of any wilful breach of contract, the liability for damages is limited to the foreseeable, typically occurring damages.
- We shall be liable according to the statutory provisions insofar as we culpably breach an essential contractual duty; in this case however the liability for damages is limited to the foreseeable, typically occurring damages. It is deemed an essential breach of contract if the breach of duty refers to an obligation which the buyer relied upon and should also be allowed to rely upon regarding its satisfaction.
- Insofar as the buyer is incidentally entitled to a claim for compensation of damages instead of the service owing to a negligent breach of duty, our liability is limited to compensation of the foreseeable, typically occurring damages.
- The liability owing to culpable injury to life, the body or the health remains unaffected; this shall also apply to the mandatory liability according to the Produkthaftungsgesetz [Product Liability Act] or the Arzneimittelgesetz [German Pharmaceutical Act].
- Insofar as not otherwise regulated above the liability is excluded.
- The statute-of-limitations for claims for defects is 12 months, beginning from the passing of risk.
- The statute-of-limitations in the event of a delivery recourse according to §§ 478, 479 BGB [German Civil Code] remains unaffected.
7. Joint and several liability
- Further liability for damages than envisaged in Subclause VI, is – irrespective of the legal nature of the asserted claim – excluded. This shall in particular apply to claims for damages from the fault upon conclusion of the contract, owing to other breaches of duties or owing to claims in tort for compensation of property damages according to § 823 BGB [German Civil Code].
- The liability owing to culpable injury to life, the body or the health remains unaffected; this shall also apply to the mandatory liability according to the Product Liability Act or the German Pharmaceutical Act.
- Claims for damages shall become statute-barred within one year after the knowledge of the buyer of the occurrence of the damages. This shall not apply if we can be accused of malicious or wilful intent.
- Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, representatives and other vicarious agents.
8. Reservation of title
- We reserve the property to the object of purchase until the receipt of all payments from the business relationship with the buyer. In case of conduct of the buyer in breach of the contract, e.g. with default of payment, we are entitled to take the object of purchase back; this shall represent a cancellation of the contract. After taking the object of purchase back we are authorized to sell it, the sales proceeds are to be offset against the liabilities of the buyer – minus reasonable sales costs.
- The buyer undertakes to treat the object of purchase carefully; in particular to sufficiently insure it at the value as new at its own costs against fire, water and theft damages.
- In case of attachments or other interventions of third parties the buyer shall inform us immediately so that we can file an action according to § 771 ZPO [German Code of Civil Procedure]. Insofar as the third party is not in the position to reimburse us the court and out-of-court costs of an action according to § 771 ZPO [German Code of Civil Procedure], the buyer shall be liable for the loss incurred to us.
- The buyer is entitled to resell the object of purchase in the ordinary course of business and subject to the reservation of title. In this case, the buyer hereby now already assigns all claims in the volume of the invoice amount (including value added tax) with all secondary rights to us, to which it is entitled from the resale. The buyer shall also remain authorized to collect this claim after the assignment. Our authorization to collect the claim ourselves remains unaffected hereby. However, we undertake not to collect the claim as long as the buyer satisfy its payment obligations from the collected proceeds, is not insolvent and in particular no application is filed for the opening of insolvency proceedings or it suspends the payments. If this is the case, we can request that the buyer announces the assigned claims and their debtors to us, provides all information, which is necessary for the collection, hands over the associated documents and informs the debtors of the assignment.
- We undertake to have the collateral to which we are entitled released to us upon request of the buyer to the extent that the realisable value of our collateral items exceeds the claims, which are to be secured, by more than 10%; we are responsible for selecting the collateral items which are to be released.
- In case of export business to countries, in which the afore-mentioned reservation of title is not legally valid, we reserve the right to secure the property right according to the respective statutory regulations of the country of receipt. The buyer undertakes to assist hereby insofar as necessary.
9. Place of performance, place of jurisdiction, applicable law
- Insofar as not otherwise derived from our order confirmation, the place of performance is Pullach.
- Insofar as the buyer is a merchant the place of jurisdiction is Munich. We are also entitled to file action at the registered seat of the buyer or at any other statutory place of jurisdiction. § 94a AMG [German Pharmaceutical Act] remains unaffected.
- The law of the Federal Republic of Germany applies. The application of the standard UN Convention on the International Sale of Goods is excluded.