1.1 The following General Terms and Conditions of sale and delivery shall apply exclusively to each delivery of our products. We do not acknowledge deviating, supplementing or contradictory conditions of the customer in any case whatsoever. Anything to the contrary shall only apply if we have expressly agreed to the validity of certain provisions with our signature. Our General Terms and Conditions of Sale and Delivery also apply if we have delivered goods despite conflicting or deviating conditions of the customer.
1.2 The statutory written form must be observed for all agreements that we conclude with the customer for the execution of a contract. This also applies to agreements that amend this clause.
1.3 These General Terms and Conditions of Sale and Delivery shall only apply to companies within the meaning of Section 14 German Civil Code, legal entities under public law and special funds under public law.
1.4 References to the applicability of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in the following General Terms and Conditions of Sale and Delivery.
2.1 Our “offers” are merely invitations to submit an offer and as such are subject to change and non-binding. This shall also apply if we have provided the purchaser with catalogues, technical documentation (e.g. drawings, plans, computation, calculations, or references to DIN norms), sundry product descriptions or documents – also in electronic form – to which we reserve property rights and copyrights.
2.2 An order received by us is a binding offer to conclude a contract under the terms of these General Terms and Conditions of Sale and Delivery and cannot be revoked within the acceptance period specified in more detail below.
2.3 The delivery contract shall only come into effect upon our acceptance of the order. The acceptance by us of the purchaser’s offer can take place within three working days after receipt by us. The acceptance is either in text form or by sending the goods.
2.4 For a hospital or a dispensary supplying a hospital, Section 3 shall apply in addition.
3. HOSPITAL DISPENSARIES AND DISPENSARIES SUPPLYING A HOSPITAL
3.1 Prior to delivery, the customer shall prove that he is in possession of the authorization pursuant to Section 14 Pharmacy Act. Proof must be provided by means of suitable documents (e.g. photocopy of the permit to operate a hospital dispensary, official authorization in accordance with Section 14, paragraph 2 or paragraph 5 Pharmacy Act).
3.2 The purchaser shall immediately notify us of any change in his permit without being requested to do so and without culpable delay. This shall apply in particular in the event that the permit or the official approval expires.
3.3 Use of the purchased products is only permitted within the scope of the supply contracts. Delivery to other pharmacies or intermediaries is prohibited.
3.4 Any order placed by a hospital dispensary and dispensaries supplying a hospital for products to supply hospitals is subject to the condition precedent of the above provisions. In the event of subsequent lapse, the entitlement to supply and payment shall lapse.
4. PRICES, CONDITIONS OF PAYMENT
4.1 The valid prices are those reported to the Information Service Provider for the Pharmaceutical Market (Informationsstelle für Arzneispezialitäten) in accordance with the German Drug Price Ordinance, unless otherwise agreed.
4.2 Unless other prices are expressly agreed, the prices valid on the day of delivery (Section 5 paragraph 1, sentence 2) shall apply.
4.3 All prices are without statutory value added tax. This will be charged separately at the statutory rate.
4.4 The prices stated at the IFA apply to “free domicile” delivery to a delivery location within Germany. In case of deviating delivery conditions, the price will be adjusted accordingly.
4.5 If a minimum order value of 150 euros (plus statutory VAT) per order is not reached and there is no other valid agreement on minimum order values, a minimum quantity surcharge of 10 euros will be applied to the respective order.
4.6 All invoices are due upon delivery and payable within 30 days of the invoice date. We grant a 2% discount if payment is received within 14 days of the invoice date. The same applies if you authorize us to collect payment by direct debit within three days of the invoice date. However, we are entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation.
4.7 From the time of default in payment, we shall be entitled to demand the statutory default interest in the amount of 9 percentage points above the base interest rate per year, without prejudice to the right to prove a higher damage caused by default.
4.8 Default shall occur at the latest 30 days after the invoice date.
4.9 If, after conclusion of the individual delivery contract, it becomes apparent (e.g. by filing for insolvency proceedings) that our claim to the purchase price is jeopardized by the buyer’s inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (Section 321 German Civil Code). The statutory provisions on the dispensability of setting a deadline shall remain unaffected.
5.1 Delivery dates communicated by us are always non-binding unless they have been designated as “binding” in text form. The delivery shall be deemed to have been carried out when the goods have been made ready for shipment.
5.2 We shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other unforeseeable events at the time of conclusion of the contract (e.g. operational disruptions of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in obtaining necessary official permits, official measures including injunctions, pandemic, epidemic (e.g. Covid-19) or the failure to deliver, incorrect delivery or late delivery by suppliers) for which we are not responsible. If such events make it considerably more difficult or impossible for us to deliver or perform and the hindrance is not only of temporary duration, we shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or the delivery or service deadlines shall be postponed by the period of the hindrance plus a reasonable ramp-up period. If the purchaser cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by means of an immediate written declaration to us.
5.3 In the event of default in acceptance on the part of the purchaser or in the event of any other culpable breach of a duty to cooperate, we shall be entitled to demand compensation for the damage incurred by us. In the event of default in acceptance, the risk of accidental loss or accidental deterioration shall pass to the customer.
5.4 The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. However, a reminder by the buyer is always required.
6.1 The purchaser must report obvious defects in writing within a period of five working days from receipt of the goods. After expiry of this period, claims for obvious defects shall be excluded. Claims for material defects shall always be subject to the condition that the purchaser has complied with his obligations to inspect the goods and give notice of defects pursuant to Section 377 of the German Commercial Code. If the purchaser fails to duly inspect the goods and/or give notice of defects, our liability for the defect not reported or not reported in time or not reported properly shall be excluded in accordance with the statutory provisions. The burden of proof for prerequisites to claim and for defects lies with the purchaser. This also applies to the timeliness of the notification of a defect.
6.2 The basis of our liability for defects is above all the agreement reached on the quality of the goods. All product descriptions and manufacturer’s specifications which are the subject of the individual contract or which were publicly announced by us (in particular in catalogues or on our internet homepage) at the time of the conclusion of the contract shall be deemed to be an agreement on the quality of the goods. However, we shall not accept any liability for public statements made by third parties (e.g. advertising statements) to which the customer has not referred to us as being decisive for his purchase. If there is a material defect, we shall be entitled – to the extent legally permissible – to effect subsequent performance at our discretion by repair or replacement. We shall be entitled to make the subsequent performance owed dependent on the customer paying the purchase price due. However, the purchaser shall be entitled to retain a reasonable part of the purchase price in relation to the defect.
6.3 The customer shall give us the time and opportunity required for the subsequent performance owed. In particular, to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the purchaser shall return the defective item to us in accordance with the statutory provisions. We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs, in accordance with the statutory provisions if a defect is actually present. Otherwise, we may demand reimbursement from the purchaser of the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not apparent to the purchaser.
6.4 In the event that subsequent performance is not possible and a replacement delivery cannot be made either, the purchaser may withdraw from the contract or reduce the purchase price. In the case of an insignificant defect, however, there shall be no right of withdrawal. Claims of the purchaser for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with the following Section 7 and shall otherwise be excluded.
7.1 Unless otherwise provided for in these General Terms and Conditions of Sale and Delivery, including the following provisions, we shall be liable for any breach of contractual and non-contractual obligations in accordance with the statutory provisions.
7.2 We shall be liable for damages – irrespective of the legal grounds – within the scope of fault-based liability in the event of intent and gross negligence. In the case of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. care in our own affairs; insignificant breach of duty) only
a) for damages resulting from injury to life, body or health,
b) for damages resulting from the breach of an essential contractual obligation (obligation, the fulfillment of which enables the proper execution of the contract in the first place and on the compliance with which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to the compensation of the foreseeable, typically occurring damage.
7.3 The limitations of liability resulting from paragraph 2 shall also apply to third parties as well as to breaches of duty by persons (also in their favour) whose fault we are responsible for according to statutory provisions, in particular to the personal liability of our employees, workers, representatives and other vicarious agents. They shall not apply insofar as a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed and for claims of the customer under the Product Liability Act or the German Medicines Act.
7.4 Due to a breach of duty which does not consist of a defect, the purchaser may only withdraw from or terminate the contract if we are responsible for the breach of duty. For the purchaser, a free right of termination (in particular according to Sections 650, 648 German Civil Code) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
8. STATUTE OF LIMITATIONS
Notwithstanding Section 438 (1) No. 3 of the German Civil Code, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. The afore-mentioned limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the buyer based on a defect of the goods, unless the application of the regular statutory limitation period (Sections 195, 199 German Civil Code) would lead to a shorter limitation period in individual cases. Claims for damages of the buyer pursuant to Section 7 para 2 sentence 1 and sentence 2(a) as well as pursuant to the Product Liability Act or the German Medicines Act shall become time-barred exclusively in accordance with the statutory limitation periods.
9. RETENTION OF TITLE
9.1 The goods shall remain our property until payment of all claims arising from our business relationship with the customer. We are entitled to take back the goods if the customer is in default of payment or has otherwise breached the contract. This does not imply a withdrawal from the contract. If the goods are taken back, we shall be entitled, but not obliged, to sell them. Any proceeds shall be credited against the customer’s liabilities less any costs incurred.
9.2 The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The purchaser is obliged to notify us immediately in text form if an application is made to open insolvency proceedings or if the goods are pledged or other third party interventions are made in our property. Insofar as costs are incurred by us as a result of third-party actions in accordance with Section 771 of the German Code of Civil Procedure, which cannot be enforced against the third party, the customer shall be liable for the damage incurred.
9.3 Insofar as the purchaser is entitled to resell the goods, he hereby assigns to us all claims to which he is entitled therefrom, including value added tax, in the amount of our claim. The purchaser shall initially remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the customer meets his payment obligations towards us, there is no deficiency in his ability to pay and we do not assert the retention of title by exercising a right pursuant to Section 7 (1) above. If this is the case, however, we may demand that the customer inform us of the assigned claims and their debtors, provide all information required for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment. In addition, in this case we shall be entitled to revoke the customer’s authorization to further sell and process the goods subject to retention of title.
9.4 If the realizable value of the securities exceeds our claim by more than 10%, we shall release securities of our choice at the request of the customer.
10. COMPLIANCE / RESALE
When purchasing and reselling the products, the purchaser undertakes to comply with justice and the law at all times. Therefore, particularly in view of the special requirements of the distribution of medicinal products, including the public interest in ensuring the quality and safety of the products, it is for this reason that the resale of our products shall be made only in unmodified original packaging. Accordingly, the offering of partial quantities or the individual sale of parts of a package is not permitted. An exception shall only apply to those pharmacies which, in accordance with the Pharmacy Act, supply hospitals with medicinal products and, in doing so, must make deliveries on a ward-by-ward basis in fulfillment of their obligation, or in other cases, insofar as the applicable law expressly permits an exception to this. If the purchaser invokes an exception, he must contact us in advance, identify the exception and coordinate the further procedure with us.
11. STORAGE OF DATA
The contractual partners undertake to observe the applicable statutory data protection provisions in dealing with personal data. The personal data of the customer in connection with the order and delivery will be processed by us exclusively for the purpose of implementing the contractual relationship.
12. APPLICABLE LAW – PLACE OF JURISDICATION
12.1 The entire business relationship with the purchaser shall be governed exclusively by the laws of the Federal Republic of Germany to the exclusion of the provisions of international private law. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
12.2 In the event that the customer is a merchant or a legal entity under public law, it is agreed that the place of jurisdiction shall be Hameln.
13. EFFECTIVE DATE
These General Terms and Conditions of Sale and Delivery shall apply from 1 January 2021 for orders unless otherwise agreed in writing.
hameln pharma gmbh, 1. Januar 2021