General Conditions of Sale

Article 1. General – Scope of Application

The General Conditions of Sale applies to all business relations and contracts with our customers. They only apply insofar as they are referred to, regardless of whether the customer is an entrepreneur (Section 14 of the German Civil Code), a legal person under civil or public law or a consumer (Section 13 of the German Civil Code).

Article 2. Orders, Conclusion of contract

2.1 Our offers are without obligation, unless they have been explicitly designated as binding and refer to our General Conditions of Sale.

2.2 A binding agreement shall only come into effect through unchanged acceptance of our offer. If a delivery of goods is accepted, the conditions of our offer shall apply, if the customer has previously offered conditions which deviate from our offer to our disadvantage.

Article 3. Prices

3.1 The prices quoted in our offer lists or other general notices are subject to change without notice and shall not be binding, unless otherwise specified below.

3.2 Unless otherwise agreed in a specific case, the price for the respective delivery shall be the price valid on the day on which the ordered goods are ready for dispatch. In the case of prescription-only medicinal products, the relevant provisions of the German Drug Price Ordinance (Arzneimittelpreisverordnung) in conjunction with the selling prices of pharmaceutical entrepreneurs, as determined in accordance with Section 78 of the German Medicinal Products Act (Arzneimittelgesetz) shall apply. In other cases, the price shown in our offer lists shall apply. The prices are net prices including the costs for packaging, plus shipping costs (postage and freight) and plus value-added tax, to the extent that value-added tax is legally due.

Article 4. Terms of Payment, Due date of the Claim, Default of Acceptance, set-off, Right of Retention

4.1 Unless otherwise agreed in individual cases, the payment is due within 10 days of the invoice date without deduction. A payment by the customer shall only be considered to have been made as soon as we can dispose of the monetary amount (receipt of payment).

4.2 In the event of default in payment, we shall be entitled to charge default interest in accordance to Section 288 (2) of the German Civil Code (BGB) in the amount of currently nine percentage points above the basic rate of interest valid at the respective time. We reserve the right to claim higher damages for default. Furthermore, the customer shall pay a lump sum in the current amount of 40 EUR according to Section 288 (5) sentence 1 of the German Civil Law Code (BGB).Any further compensation for damages under offsetting of the lump sum remains unaffected.

4.3 If the customer defaults in payment, our other claims from the business relationship with the customer against the customer shall also become due for immediate payment.

4.4 Payments made by the customer will deducted from the costs first, secondly from the interest and lastly from the principal claim, unless the customer agreed with us on a different right to specify performance.

4.5 The customer shall only be entitled to set off claims against us, which are recognised or have been finally and non-appealably established by a court of law. The customer shall only be entitled to assert a right to retention, if it is based on a claim against us from the same contractual relationship, insofar as the claim is undisputed, ready for a decision by a court of law or has been finally and non-appealably established.

4.6 If it becomes evident to us after the conclusion of the contract, that our claim to payment is at risk due to the customer’s lack of economic performance, we may withhold the obligation to perform until the customer has fulfilled the consideration or provided security for it. In this case, we shall be entitled to carry out the delivery against cash on delivery or payment in advance, in derogation of this article 4.1

 Article 5. Delivery

5.1 Unless the customer agreed with us otherwise, our delivery shall be carried out from our works warehouse or delivery warehouse at our place of business at the expense and risk of the customer. If the delivery is carried out on special request of the costumer by a specific shipping route or on a specific date as requested, the customer shall be charged the additional costs resulting from the request. The risk is passed to the customer as soon as we transferred over the goods to a duly selected shipping or transport company (e.g. freight forwarder, shipping agent, mail service) or to the person otherwise assigned to carry out the shipment. In this case, our obligation to deliver is fulfilled with the proper handover of the goods to the carrier.

5.2 We shallbe entitled to make partial deliveries to the extent reasonably acceptable to the customer.

5.3 The delivery dates and delivery periods given are not binding, unless the customer agreed with us otherwise in written form. Delivery periods agreed in written form commence on conclusion of the contract, unless the customer is obliged to pay in advance. In the latter case, agreed delivery periods shall commence upon the receipt of the customer’s consideration.

5.4 The customer shall notify us and the company commissioned with the delivery immediately of any recognisable transport damages. In case of concealed transport damages, the customer is obliged to report within four working days in written form. Upon delivery the customer shall immediately inspect the goods for completeness and conformity with the order and the delivery documents and report any damages or deviations without undue delay. Otherwise, the delivery shall be regarded as approved by the customer.

5.5 If we are not or not on time supplied with the goods ordered by the customer by our pre-supplier, we shall not be in default with respect to the customer due to the delay caused hereby, unless we are responsible for the delay in delivery or non-delivery of the goods. If our self-delivery of the goods ordered by the customer, is delayed by more than six week or if it is certain that the self-delivery by our pre-supplier will not take place for reasons beyond our responsibility, we shall be entitled to revoke the contract. In the event of a partial or complete failure to deliver the ordered goods by our pre-supplier, we shall not be obliged to cover ourselves with a third-party supplier, unless this  would be permissible for us without additional significant economic and temporal expenditure.

 5.6 In the event of Force Majeure or similar events (e.g. strikes, embargoes, import and export bands, other official measures and conditions, war or war-like circumstances) which prevents us, without any responsibility on our part, from delivering the goods on binding or non-binding dates or periods agrees, these shall be extended by the duration of Force Majeure or similar events responsible for the disturbances. If the delay in delivery caused by this exceed the period of six weeks, we or our customer may revoke the contract with regard to the scope of obligations concerned. If our delivery becomes wholly or partially impossible or unreasonable due to the Force Majeure or similar events pursuant to Article 5.6 sentence 1, we shall be released from our obligation to deliver or shall be entitled to revoke the contract. Legal rights to revoke the contract remain unaffected. Other claims of the customer do not exist in the cases mentioned in Article 5.6.

5.7 If the customer is in default of acceptance or default of dept or negligently violates other obligations to cooperate, we shall be entitled to demand compensation for the damages caused to us, including any additional expenses. Further claims and rights remain reserved. Provided, that the conditions laid out in Article 5.6 are met, the risk of accidental loss or accidental deterioration of the ordered goods shall pass to the customer at the moment, when the customer is in default in acceptance or default in payment.

5.8 If we and the customer agree upon a drop shipment, in which the delivery of the ordered good takes place directly by the supplier and not by us, we do not take over the transport. The customer and the supplier shall agree on the transport conditions and shall be solely responsible for compliance with public law regulation, in particular for export and import.

Article 6. Retention of title

 6.1 We shall retain ownership of the goods delivered by us until full payment of all our claims arising from the delivery contract and other claims, which we subsequently acquire against the customer in direct connection with the delivered goods – regardless of the legal basis – as reserved goods.

6.2 Furthermore, the goods delivered by us shall remain our property as reserved goods, until all other claims, which we acquire in present or in future against the customer within our business relationship – regardless of the legal basis – have been fulfilled. This also applies in particular to balance claims from the current account, to which we are entitled from the customer within the scope of our business relationship. In the case of a current account, the reserved goods therefore serve to secure our balanced claims. 

6.3 The customer shall treat the reserved goods with care. The customer is obliged to sufficiently insure the reserved goods against fire, property damage and theft. The reserved goods are to be kept under insurance cover. The customer shall cover the costs for the aforementioned insurance. At our request, the insurance must be proven to us by providing the insurance certificate.

6.4 If the customer does not only temporarily suspend his payments or applies to open insolvency proceedings against his assets or if insolvency proceedings are opened against his assets at the request of a third party, he shall at our request be obliged to return the goods which are subjected to retention of title, in accordance to Article 6. This shall also apply in the event of any breach of contract by the customer, in particular if the customer is in default of payment.

6.5 In the event of seizure or similar access by third parties to the reserved goods (e.g. compulsory enforcement), the customer is obliged to inform the third party of our ownership of the reserved goods. The customer is also obliged to notify us immediately and without undue delay in written form in order to enable us to take legal action against the third party in due time (e.g. lawsuit based on Section 711 of the German Code of Civil Procedure). If the third party is, despite a legal obligation, not able to reimburse us for the judicial costs or extrajudicial costs of an action in accordance with Section 711 of the German Code of Civil Procedure, the customer shall be liable for the loss incurred by us.

6.6 Transfers by way of security or other similar dispositions, transfer or modification of the reserved goods, which impair our reserved property, require our prior written consent. The right of the customer to resell the goods in the ordinary course of business in accordance to Article 6.7 shall be unaffected.

 6.7 The customer is entitled to resell the goods in ordinary course of business. If the customer is obliged to pay us in advance, he shall be obliged to sell the reserved goods only under retention of title on his part. As long as we have ownership of the reserved goods, we may revoke the authorisation to resell in the case of an objectively justified reason (e.g. temporary suspension of payment by the customer).

6.8 The customer hereby assigns us all claims, to which he is entitled from the resale or any other legal reason with regard to the reserved goods against his customers or third parties. We hereby accept the assignment.

6.9 We hereby revocably authorise the customer to collect the claims, which are assigned to us under Article 6.8, on his own behalf. We are entitled to revoke this collection authorisation in the case of an objectively justified reason. Our power to collect the claim on our behalf is unaffected by the customer’s mentioned authorisation. We shall, to the extent that the customer duly meets his payment obligation to us, not collect the claims on our behalf.

6.10 If we are authorised to collect the claims on our own behalf, the customer is obligated, at our request, to disclose the assignment of the claim pursuant to Article 6.8 to his customers and provide us with all information and documents, which are required for the collection of the claim. This includes a list of the resales of the reserved goods, the names and addresses of the debtors and the monetary amount of the claims against the debtors. We shall be entitled to notify the debtors of the assignment of the claims.

6.11 The customer hereby assigns to us the claims, to which he is entitled against his insurer pursuant to Article 6.3 in the event of occurrence of a damage case, to the extent that the claims regarding the damage claims relate to goods, which are subject to our retention of title. We hereby accept the assignment. We shall be obliged to reassign these insurance claims to the customer in the event, that the retention of title has expired due to full payment of all our claims.

6.12 We shall be obliged to release the securities, to which we are entitled, at the customer’s request, if the customer has fulfilled all our claims secured by retention of title, or if the realisable value of our securities (retention of title, transfer by way of security, aissgnment of claim) exceeds the total monetary amount of our claims to be secured by more than 10 %. The choice of the securities to be released shall be incumbent upon us.

Article 7. Seller’s warranties and Exclusion of Warranties

 7.1 We only oblige to provide services in compliance with the law. The assessment of compliance with the law is based only on the laws and legal standards applicable in the Federal Republic of Germany. Insofar, as these standards are deemed to have been met by the authorities of the Federal Republic of Germany, the customer must accept this as valid against him. This also applies to any transnational and international laws and standards (e.g. European Union Law), provided that the monitoring of these are carried out by the authorities of the Federal Republic of Germany. In particular, medicinal products supplied by us, which must bear a safety feature in accordance with the commission delegated regulation (EU 2016/161), are deemed to be in proper condition (free of defects), if a verification is carried out by us and the medicinal product is qualified as being ready for dispensing by the NMVO (National Medicines Verification Organisation) responsible for us (securePharm e.V.), regardless of any other qualification by a NMVO not responsible for us. Accordingly, the delivery shall also be free of defects, if we comply to the legal requirements required for the export of the ordered goods.

 7.2 Thecustomer is obliged to inspect the delivered goods after their receipt to ensure that they are free of defects and, if a defect becomes apparent, to notify us of this in writing without undue delay. Defects, which are recognisable upon proper examination must be reported to us in written form within three working days of receipt of the goods, hidden defects within three days following their discovery.

Otherwise, the goods shall be regarded as approved by the customer (Section 377 of the German Commercial Code (HGB)).

7.3 In the case of defects, of which we have been notified in due time, our liability shall initially be limited to subsequent performance by delivery of defect-free goods against return of the defective goods. If this subsequent performance does not lead to success within a reasonable period of time, the customer shall be entitled, at his option, to revoke the contract or reduce the purchase price. The customer shall only be entitled for damage claims due to defects if our liability is not excluded or limited in accordance with Article 8. Any further claims or claims, other than those regulated in this article 7, due to a defect are excluded.

7.4 A claim for reclaim or exchange of properly delivered, faultless goods shall only be made on the basis of a separate agreement. We reserve the right to destroy goods, which are returned to us without a regal reason, without delivery of a replacement. A return is only possible with the filled out and signed return advice notice. 

Article 8. Liability

 8.1 In the case of intentional negligence, we shall be liable for damages without limitation. In the case of gross negligence, our liability for damages shall be limited to the foreseeable, typically occurring damage.

8.2 In the case of a negligent, but not intentional or grossly breach of a principal contractual obligation or essential ancillary obligation imposed on us, our liability shall be limited to the foreseeable, typically occurring damages at the time of the conclusion of the contract. Essential ancillary obligations to Article 8.2 sentence 1 are those, whose fulfilment are necessary to achieve the purpose of the contract or whose fulfilment is essential for the due performance of the contract and whose compliance the customer could rely on. In the case of negligent, but not intentional or grossly breach of contractual ancillary obligations, which are not qualified as essential in accordance to Article 8.2 sentence 2, the liability for damages is excluded.

8.4 Our liability in the case of fraudulently concealment of defects or the giving of a guarantee of the quality, as well as our liability for the negligent injury of life, body or health, as well as the mandatory liability in accordance with the German Product Liability Act (Produkthaftungsgesetz) and German Medicinal Products Act (Arzneimittelgesetz) shall remain unaffected by the limitations of liability pursuant to this Article 8.

Article 9. Resale

The goods supplied by us, in particular medicinal products, may only be offered, sold or delivered in the unchanged original packaging and also not in partial quantities. The customer is only permitted to resell the supplied goods within the scope of his usual business transactions. Repackaging of the delivered goods is only permitted to the extend permitted by law (e.g. in German Law: Section 31 of the Pharmacy Regulations (Apothekenbetriebsordnung) and Section 13 Paragraph 3a of the Drug and Active Substance Manufacturing Regulation (Arzneimittel- und Wirkstoffherstellungsverordnung)).

Article 10. Assignments, debt collection

10.1 Weshall be entitled to assign our existing claims against the customer to third parties without the consent of the customer.

10.1 Regardless of Article 10.1 and in the event of default in payment by the customer, we are also entitled to commission a registered debt collection agency to collect the claims against the customer. The customer is obliged to reimburse the costs of the commissioned registered debt collection agency caused by the default in payment. The reimbursement of the aforementioned costs is limited to a reasonable amount regarding to the payment default.

Article 11. Data processing

Customer data shall be stored and processed in compliance with the General Data Protection Regulation and the German Federal Data Protection Act (Bundesdatenschutzgesetz) to the extent necessary for the execution of the agreed contracts.

 Article 12. Place of fulfilment, Choice of Law, Place of Jurisdiction

12.1 Unless otherwise agreed, the place of performance shall be the location of our head office in Aachen, German Federal Republic.

12.2 The courts at our headquarters in Aachen shall have exclusive – including international – jurisdiction over all disputes arising from this General Conditions of Sale and the business relations between us and the customer. This also applies to the disputes concerning the validity of this General Conditions of Sale and the validity of the contract conclusions. We shall be – at our discretion –  entitled to file an action at the customer’s general court of jurisdiction.

12.3 This GeneralConditions of Sale and the agreements between us and the customer shall be governed by and construed in accordance with German law. German Law shall apply. Neither the UN Convention on the International Sale of Goods (CISG) nor the German International Private Law shall apply.

Article. 13 Other terms

13.1 Changes and amendments to the General Conditions of Sale as well as contracts concluded between us and the customer as well as their cancellation require the text form. Individual agreements pursuant to Section 305 of the German Civil Code are excluded from formal requirements, unless they are legally mandatory.

14.2 If any part of these General Conditions of Sale or concluded contracts between us and the customer are declared invalid or unenforceable, the validity or enforceability of the other agreements shall not be affected thereby. We and the customer shall be obliged to agree to an appropriate provision in place of the invalid or unenforceable provision which, to the extent legally permissible, comes as close as possible to the intent and purpose of the invalid or unenforceable provision. We and the customer have the explicit will, that article 14.2 shall not merely shift the burden of proof, but that section 139 of the German Civil Code shall be excluded as a whole.