General Terms and Conditions of Purchase and Delivery of HERMES PHARMA GmbH (July 1st, 2021)
GENERAL TERMS AND CONDITIONS OF PURCHASE ("Terms and Conditions of Purchase") of HERMES PHARMA GmbH
1. Validity; order; conclusion of Agreement; written form
- Our Terms and Conditions of Purchase apply to all our business dealings with our suppliers, subcontractors, service providers and work contractors ("Suppliers") in connection with the purchase of goods ("Goods") and/or services, in particular work or services ("Services"). Our Terms and Conditions of Purchase also apply to future business dealings with the Supplier in the version current at the time of our order as a framework agreement, even if their validity is not expressly referred to in individual cases. The Terms and Conditions of Purchase apply exclusively; we do not accept any conflicting, deviating or supplementary terms and conditions of the Supplier. Such terms and conditions of the Supplier will not become an integral part of the Agreement unless we have expressly consented in writing to their application. Accordingly, consent will not be deemed to be given even if in the knowledge of the Supplier's terms and conditions, we, – without any reservation – trigger orders, accept Goods or other Services or directly or indirectly refer to letters, etc., which contain the Supplier's or third-party terms and conditions.
- Orders are only binding for us if we have placed or confirmed them in writing. The Supplier must check the orders and any related specifications, demands, documents and guidelines on its own responsibility and draw our attention without undue delay to any inaccuracies, ambiguities, incompleteness, inconsistencies, or departures from latest state-of-the-art technology and any other reservations it may have.
- The Supplier can only accept our orders within any acceptance period stated therein, otherwise within ten (10) working days from receipt of the order without changes by written confirmation. Timely receipt of the confirmation or the confirmation of dispatch by us during our normal business hours is decisive in this respect. If we do not receive confirmation of the order or dispatch within the specified period, the order will be deemed to have been rejected. Until acceptance of the order by the Supplier, we are not bound by the order and can revoke or change it at any time.
2. Changes to Goods/Services; cessation of production
- Any changes to Goods/Services, in particular to their specifications or changes to their manufacturing process including changes to production materials used, testing equipment and methods, production facilities or environment, relocation of the production process to another production site (also within the same site), changes by or at upstream suppliers or subcontractors, etc., require our written approval and must be notified by the Supplier without delay, at least three (3) months and in the case of changes relevant to regulatory authorization at least 12 months in advance, stating the associated extra costs or reduced costs. In the event of a cessation of production, the Supplier must inform us in writing without delay no later than 12 months before the planned cessation.
- We may demand reasonable changes from the Supplier to the Goods or Services in terms of specifications, construction or design. The circumstances, in particular with regard to extra costs and reduced costs and delivery dates, must be agreed reasonably and by mutual consent.
3. Delivery; delay in delivery; transfer of risk
- Unless otherwise agreed, all deliveries will be made "DDP" (Incoterms 2020) (to the delivery address specified in our order or, if the address is not expressly stated, made to the delivery address of our respective ordering site). The place of performance for the delivery of Goods/performance of Services is our registered office, unless otherwise stated in our order. Unless otherwise agreed, the delivery of Goods/performance of Services may only take place during business hours at the relevant place of performance.
- Any deadlines for delivery/performance specified in the order are binding on the Supplier. Where no deadlines for delivery/performance are specified in the order, delivery of Goods/performance of Services must take place without undue delay, no later than within eight (8) days. The Supplier will inform us in writing without delay if it anticipates that the deadlines for delivery/performance cannot be met. The Supplier will inform us about the reason for the delay and about its expected duration. Acceptance by us of a delayed delivery or service does not constitute a waiver of any claims.
- If the Supplier falls into default with a delivery, we are entitled – in addition to further statutory claims – to charge a contractual penalty of 0.5% of the net value of the delayed delivery for each calendar week commenced of the delay, however not more than 5 % of the net value of the delayed portion of delivery. The contractual penalty must be asserted by us no later than upon payment of the delivery with which the Supplier was in default. Any contractual penalty paid will be set off against any further damage claims that is based on the same cause of damage.
- The Supplier must take the following steps:
- it will notify us of each delivery without undue delay after it has been made by means of a dispatch note, which will provide a breakdown by type, quantity and, if applicable, weight,
- it will pack the Goods in a manner conforming to the industry standard and affording sufficient protection from damage in transit and, at our request, take back packaging material at its own expense,
- upon request, it will provide us with certificates of origin, declarations, documents and data on trade requirements and will inform us in detail and in writing about possible export restrictions or licensing requirements in the country of origin or at the place of destination of the Goods and Services,
- it will provide full details of any existing and potential risks or hazards associated with the Goods and whether the hazards arise from direct or indirect use,
- it will provide full details of the appropriate safety precautions to be taken in connection with the use and handling of the Goods, and
- it will mark all packaging and containers with dangerous, toxic or otherwise harmful Goods in the prescribed and clearly visible manner in order to protect persons handling or coming into contact with these Goods.
- Early delivery and/or partial delivery of Goods and/or performance of Services is only permissible with our prior written consent. Otherwise, we can reject them. The Supplier bears the risk and expense of return transport.
- If we are unable to accept delivery on the contractually agreed date for whatever reason, the Supplier will store the Goods and keep them in a condition as customary in trade. We will reimburse the Supplier for the reasonable costs of such storage upon submission of corresponding proof.
- The risk of accidental loss and accidental deterioration will pass to us upon handover at the place of performance. Where the service consists of a deliverable or an acceptance has been agreed, the risk will only pass to us upon successful acceptance.
4. Prices; order documents; payment
- The agreed prices are fixed prices plus statutory VAT. Unless otherwise expressly agreed, the price includes all costs of packaging, packing, shipping, freight, insurance and delivery of the goods, all applicable travel expenses, board and lodging and other costs in connection with the Services, and all duties, fees, licences, permits and taxes (other than VAT) as may be payable on Goods and/or Services from time to time.
- All order confirmations, delivery documents, dispatch notes and invoices must also state our order number, the date of the order, our article number, individual and end prices, a description of the article, quantity supplied, delivery address and the name and address of the Supplier.
- Payment terms are 14 days with 2 % discount or 30 days net. The payment period commences upon receipt of a proper invoice in duplicate at our agreed invoice address, but not before complete delivery of the invoiced Goods or performance of the invoiced Service including all documents and acceptance (where acceptance is required).
- In the event of a processing delay due to missing and/or incorrect information or an invoice not having been properly submitted, our payment deadline will be automatically extended by a reasonable period of time.
- Payment of an invoice by us does not constitute an acknowledgement of the Goods and/or Services covered by the invoice and is without prejudice to any claims we may have against the Supplier.
- Preparation of offers, projects, drafts and cost estimates, trial deliveries and similar preparatory work by the Supplier are generally free of charge unless otherwise agreed.
5. Reservation of rights, e.g. copyrights and property rights
- We reserve all title, copyright and property rights regarding all documents, materials and other items (such as order documents, plans, drawings, illustrations, calculations, product descriptions and specifications, manuals, samples, models and other physical and/or electronic documents, information and items) which we provide to the Supplier.
- The Supplier may not make the aforementioned items provided, either themselves or their content, available to third parties or share them with third parties without our written consent, or exploit, reproduce or modify them. It must use them solely for the contractual purposes and must return them to us in full at our request and destroy (or erase) any copies, providing it no longer needs them in the proper course of business or to comply with statutory retention obligations. At our request it must confirm or prove that the above documents, materials or items have been returned and destroyed/erased in full and provide evidence as to which of them it claims it still needs and for which of the above reasons.
- The Supplier must treat as confidential all information and documents which we provide to it or which it otherwise obtains in relation to our business or which it has produced or is producing specifically for us in connection with the performance of the Agreement. This obligation continues notwithstanding termination or cancellation of the Agreement for any reason. However, the provisions do not apply to information or documents which are generally available or become generally available without breach of the Supplier's obligations or which are disclosed to the Supplier's subcontractors to the extent necessary for performance of the Agreement.
- The Supplier must treat the business relationship with us confidentially and may only mention the cooperation with us, in particular in advertising materials and on the internet, with our prior written consent.
7. Provision of materials/tools
- Materials, tools, moulds, models, profiles, measuring and testing equipment, drawings, works standard sheets, printing templates, films, devices and all other items (e.g., software, finished and semi-finished products) (i) which we make available to the Supplier, (ii) which we obtain within the framework of the contractual relationship with the Supplier or (iii) which are purchased, manufactured or used by the Supplier in connection with the contractual relationship with us and paid for by us ("Tools") remain our property and may only be used for the purpose of fulfilling the Supplier's contractual obligations. Ownership of the Tools will pass from the Supplier to us on the date of acquisition of the Tools by the Supplier or, in the event of manufacture of the Tools by the Supplier, on the date of completion of manufacture. No further acts of the parties are required to make the transfer of ownership effective. The Supplier will store the Tools carefully and free of charge for us and will mark them as our property immediately after they have been made available to the Supplier or immediately after acquisition or manufacture by the Supplier. Upon request, the Supplier will provide evidence of this marking by means of photographs or by other means. The Supplier will use the Tools exclusively for the performance of Services to us or for the manufacture of the Goods ordered by us. The Supplier will hand over the Tools to us upon request.
- The Supplier will insure the Tools owned by us at its own expense, on reasonable terms, and at replacement value. The Supplier will carry out inspections, maintenance, servicing and repairs to the Tools in a timely manner at its own expense.
8. Quality requirements
- The Supplier will deliver the Goods in the highest quality in accordance with its warranty set out in clause 11. The Supplier will comply with the applicable legal provisions and the recognised practices and standards of the industry and will develop, produce and test the Goods to be supplied in such a way that they comply with the said provisions, practices, standards and the contractual agreements. The Supplier will establish and maintain a documented quality assurance system, suitable in scope and nature, which corresponds to the latest state of the art technology. It must prepare records, especially with respect to quality reviews, and provide us with these records without delay at our request. The Supplier must be and remain holder of an ISO 9001 Certification to be renewed on a regular basis and provide us with proof of this at our request. Where the Goods are products for use in the pharmaceutical sector or medical devices, the Supplier will comply with the requirements of Good Manufacturing Practice (GMP) and the regulatory and statutory requirements for the manufacture and supply of a medical device.
- The Supplier warrants that its products comply with all provisions of Regulation (EC) No 1907/2006 of the European Parliament and of the Council on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH Regulation) and Regulation (EC) No 1272/2008 of the European Parliament and of the Council on Classification, Labelling and Packaging of Substances and Mixtures (CLP Regulation). This covers in particular and registration of the substances in the product and to be registered pursuant to the REACH Regulation, provision of a safety data sheet without special request pursuant to Art. 31 REACH Regulation or the information pursuant to Art. 32 REACH Regulation and the classification, labelling and packaging pursuant to the CLP Regulation. This also applies if the Supplier is not resident in the European Economic Area (EEA). If the Supplier is not resident in the EEA it will ensure that a sole representative pursuant to Art. 8 REACH Regulation will satisfy the obligations under the REACH Regulation. The Supplier warrants that its products do not contain any substances which give particular cause for concern (SVHC) within the meaning of Art. 57 REACH Regulation and no substances included pursuant to Art. 59 (1) REACH Regulation in the "candidates list" or in Annex XIV or Annex XVII REACH Regulation. The Supplier undertakes to inform us – on its own initiative – in writing without undue delay specifying the percentage of concentration weight by weight in the respective part product if a good ordered and/or already delivered – for any reason whatsoever – should contain any such substances.
- If the Supplier becomes aware that the Goods or Services do not comply with the quality requirements and the Supplier's warranty set out in Clause 11 and/or if the Supplier has legitimate doubts that the Goods or Services comply with these requirements, the Supplier will notify us in writing without undue delay and inform us of any measures to be taken. The same will apply if the Supplier becomes aware of third-party property rights which conflict with our unrestricted use of the Goods or Services. Our acceptance and handling of this information will be without prejudice to any claims we may have against the Supplier as a result of such non-compliance.
- We may inspect the Goods or Services at the Supplier's premises or other locations at any time prior to their performance or completion. Such inspection by us will not relieve the Supplier of its responsibility or liability for the Goods or Services and will not constitute acceptance of the Goods or Services by us. The right of inspection prior to delivery will not affect our right to refuse acceptance of Goods after delivery.
- We may require raw material certificates and test certificates for materials and equipment used in the procurement and manufacture of the Goods. The Supplier will provide us with these certificates within five working days of receipt of the request. The Supplier will ensure that it is always possible to trace its Goods. Furthermore, it will take adequate measures enabling it, upon occurrence of a defect in any of its Goods and Services, to determine without delay which other products may be affected.
9. Examination of Goods/Services; acceptance procedure
- The Supplier will provide all Goods and Services in accordance with the contractual agreements and the specifications. We may inspect the Goods on or after acceptance of the Goods. However, we will only be required to inspect the Goods for deviations in type and quantity and for obvious damage (including transport damage) and we will notify the Supplier of such deviations and damage within eight (8) days of receipt of the Goods at the place of receipt and, in the case of hidden defects, within five (5) days of their discovery. In order to fulfil the obligation to notify, we need only provide the Supplier with a brief description of the deviation, damage or defect.
- If we are required under the contractual agreement or under the given circumstances to inspect and approve the Goods or Services with regard to their contractual conformity, the Supplier will request that we carry out this inspection and acceptance after delivery of the Goods or performance of the Services ("Acceptance Procedure"). The Supplier will make this request in accordance with the contractually agreed dates or as soon as possible, if no dates have been set. At our request, the Supplier will provide adequate personnel for participation in this test free of charge. We may refuse acceptance of Goods or Services in whole or in part if the Supplier fails to provide proof that they meet the contractual requirements and/or agreed acceptance criteria. If we refuse acceptance of the Goods or Services in whole or in part, the Supplier will immediately investigate and remedy the non-conformity, and repeat the Acceptance Procedure. If the second Acceptance Procedure is unsuccessful, we may, at our own discretion, choose to repeat the Acceptance Procedure or to assert the claims set out in clause 11. If we use Goods or Services in whole or in part due to operational necessities, this will not be deemed to be acceptance of the Goods or Services.
10. Industrial property rights
- Expertise, confidential information, intellectual property rights, in particular patents, trademarks, service marks, design rights (registered or unregistered), copyrights (including future copyrights) and related applications developed by the Supplier or its subcontractors or agents in connection with (i) a development commissioned by us, (ii) a modification of a product specifically made for us or (iii) in the context of the manufacture of a Tool to be used for us ("New Property Rights") are our property and are compensated by the payment of the price of the Goods and/or Services. New Property Rights are hereby transferred – to the extent legally permissible – from the Supplier in advance when they are created in their respective states to us; we hereby accept such transfer. We have the sole right to any and unrestricted use and exploitation of the New Property Rights. The Supplier will use New Property Rights exclusively for the purposes of the Agreement.
- If the transfer of rights pursuant to clause 10.1 is not possible, the Supplier hereby grants us the unrestricted, irrevocable, exclusive, global, permanent, sub-licensable and transferable right, such right being free of charge to use the Goods and/or Services in unprocessed or processed form and in all known and unknown types of use.
- The Supplier will ensure by means of appropriate contractual agreements with its employees, subcontractors and other vicarious agents or persons employed by the Supplier in the performance of the business relationship with us that the rights described in this clause 10 can be granted to us for an unlimited period of time and without additional remuneration (including a possible inventor's remuneration) or other restrictions.
- Where the intended use by us of the Supplier's Goods or the Services requires a right of use to the Supplier's rights not to be transferred or licensed to us in accordance with the above clauses, the Supplier hereby grants us a non-exclusive, unlimited, worldwide, perpetual and free-of-charge right of use, limited to the intended use, to these rights.
11. Warranty, warranty claims
- Without prejudice to any other warranties under the parties' agreements or on any other legal grounds, the Supplier warrants that the Goods and the parts or materials used for the manufacture of the Goods in connection with the Goods:
- are suitable for the intended purpose,
- conform in all respects to the specifications and, where applicable, samples, specifications or drawings; in particular, any weights, measures, marks, legends, words, particulars or descriptions stamped, printed or otherwise affixed (including any required country of origin information) on or referring to the Goods, packaging or containers supplied pursuant to the contractual agreement will be correct and comply with all laws and regulations,
- are new and unused, are made of solid material and are solidly finished and free of defects (hidden or otherwise) and correspond to the current state of the art,
- comply with all applicable international and national laws, directives and regulations (including Foreign Trade and Payments Act, Product Safety Act, Hazardous Substances Ordinance, Chemicals Act and REACH Regulation) for the design, manufacture, import, sale, packaging, labelling, safety standards and use of the Goods applicable at the time of delivery,
- are free of third-party rights,
- if necessary, be approved by the responsible inspection authorities upon delivery,
- contain any information, warnings, instructions or documents relevant to the use, storage, operation, consumption, transport and disposal of the Goods; and
- comply with the representations and warranties in the Supplier's brochures, documents and advertising material, unless otherwise agreed.
- In addition to the warranties to which we are entitled under the contractual relationship with the Supplier or on other legal grounds, the Supplier warrants that all Services will be performed (i) with a high degree of professional competence, proper procedures and good judgment as used by recognised professional providers of similar Services, (ii) in full compliance with all applicable laws and (iii) such that the Services performed under the Contract are free from defects in materials and workmanship and are fit for their intended purpose.
- The Supplier's warranties will apply for a period of 36 months from the handover of the Goods to us at the place of performance, from the acceptance by us pursuant to clause 9.2 or from completion of the Services (the later point in time is decisive) or for a longer period stipulated by German law or agreed between the parties.
- If the Goods delivered do not comply with the Supplier's warranties, we will be entitled to the statutory warranty rights, unless otherwise stipulated in these Terms and Conditions of Purchase.
- In the event of defects in Goods, we may, at our discretion, demand rectification of the defect by removal of the defect or replacement delivery. If the Supplier is in default of subsequent performance or if there is imminent danger so that the Supplier can no longer be requested to provide subsequent performance in good time, we may carry out the subsequent performance ourselves at the Supplier's expense. We will inform the Supplier without undue delay, if possible before the work is carried out.
- Without prejudice to any other legal rights, the following entitles to reject a batch delivered by the Supplier in accordance with the principles below:
- A zero-defect tolerance applies to critical defects whose presence/occurrence endangers human life or health, violates legal regulations or, in the packaging area, leads to the destruction or alteration of the contents, significantly impairs the reliability of storage or the efficiency of production tools, filling and packaging equipment ("Defect Class 1"). We are entitled to reject an entire batch as soon as a product in the batch falls under Defect Class 1.
- A defect tolerance of 1 % will apply to major defects whose presence/occurrence leads to the inoperability or failure of the Goods, result in complaints from our customers, cause reductions in performance in our production/processing or, in the packaging area, impair the efficiency of production tools, filling and confectioning equipment ("Defect Class 2"). We are entitled to reject an entire batch as soon as 1 % of the Goods in a batch fall under Defect Class 2.
- For all other defects to Goods ("Defect Class 3"), a defect tolerance of 4 % will apply. We are entitled to reject an entire batch as soon as 4 % of the Goods in a batch fall under Defect Class 3.
- If defects occur in a delivery of Goods which justify the assumption that further deliveries are also defective, we may refuse acceptance of all further deliveries already bindingly ordered as long as the Supplier does not prove that the further deliveries are free of defects. In case of doubt, such an assumption is justified if the defect tolerances set out in clause 11.6 are exceeded. In such cases, we will also be entitled to give notice of defect for the entire quantity already delivered, even if the defect only becomes apparent during processing or other use of the delivered items.
12. Ensuring the supply of spare parts
Where applicable to the Goods, the Supplier will keep available for a period of at least seven (7) years after the last delivery of the Goods which are materially equivalent in function and quality to the parts contained in the Goods or will provide us with equivalent solutions on reasonable commercial terms.
13. Subcontractors, upstream suppliers
The Supplier is not permitted to have Goods or Services provided in whole or in part by third parties (e.g. subcontractors) without our prior consent. The involvement of third parties does not release the Supplier from its responsibility. The conduct of third parties which the Supplier involves to fulfil its contractual obligation towards us will be attributed in full to the Supplier. The Supplier will be liable for the fault of its upstream suppliers in the supply chain as for its own fault.
14. Supplier's reservation of title
- Unless otherwise agreed between the parties, title to the Goods or the relevant part of the Goods will pass (i) upon payment for the Goods or the relevant part of the Goods or (ii) upon delivery of the Goods at the agreed place of receipt, whichever is earlier.
- Where ownership of the Goods or part of the Goods has passed to us, but the Goods are still in the Supplier's possession, the Supplier must clearly mark the Goods as our property and store them separately from all other goods.
- Unless the parties have agreed otherwise or the law provides otherwise, we will be entitled to process and resell the Goods in the ordinary course of business even before payment of the purchase price.
15. Product liability and manufacturer's liability
- If the Supplier's Goods or Services can result in danger to life and limb or other damage including pecuniary losses suffered by third parties, we are entitled at the Supplier's cost to take all measures, such as public warnings and recall campaigns which are required of us or which are appropriate for other reasons to protect third parties from damage. The Supplier will cooperate with us in mutual trust and cooperation in order to remedy the risks emanating from its deliveries as quickly and effectively as possible. In particular, on request and without undue delay the Supplier will provide us with the required documentation proving that the Supplier's Goods and Services comply with all applicable directives and standards. The Supplier will bear the costs of such measures insofar as it is responsible for their necessity.
- If the Supplier has indications that the Goods or Services could result in danger to life or limb or other damage including pecuniary losses suffered by third parties, the Supplier must inform us of this without undue delay.
- If a third party brings a claim against us based on product and/or producer liability and if that claim is attributable to a delivery of Goods or the performance of a Service by the Supplier, the Supplier will be required to reimburse all expenses, costs and damages (including the costs of a reasonable legal prosecution or defence) incurred by us as a result and to indemnify us against all resulting third-party claims, insofar as the Supplier is responsible for this. This will not affect any claims going beyond this.
The Supplier will take out and maintain at its own expense the usual insurance policies on standard industry terms which are satisfactory to us; in particular, this will include product liability insurance with a sum insured of EUR 10 million per personal injury/property damage – as a lump sum until the expiry of the limitation period for defects. The Supplier will provide us with proof of insurance upon request. For the avoidance of doubt, the insurance cover does not limit the Supplier's responsibility and liability for the Goods and Services.
17. Force majeure
Natural disasters, epidemics, pandemics, unrest and other unforeseeable, unavoidable and serious occurrences will release the parties from their performance duties for the period of the disruption and the extent of its consequences.
Both the occurrence and the end of such an event will be notified to the other party without delay. If the disruption lasts longer than one (1) month, the parties will adjust the obligations of both sides to the changed circumstances in accordance with the principles of good faith. The Supplier undertakes to provide us with reasonable support upon request in procuring an alternative source of supply for the procurement of the Goods and Services. The reasonable scope will also include the granting or transfer of rights of use, where necessary.
18. Compliance with statutory provisions
- The Supplier and the persons employed by the Supplier will, in general and for the duration of the business relationship, comply with all laws, ordinances and regulations relevant to it and the business relationship with the purchaser, including (but not limited to) all anti-corruption laws, data protection laws, environmental laws, pharmaceutical laws, labour laws, and antitrust and competition laws.
- The Supplier, its management and its employees will not (i) offer, promise or grant any unlawful benefit to public officials, potential customers or their employees or third parties and (ii) accept any unlawful benefit from potential customers, their employees or third parties.
- The Supplier will always ensure a safe working environment, comply with all applicable provisions regarding quality, health protection and safety, and take due account of environmental protection concerns and use environmentally friendly products and processes within the scope of commercial and technical possibilities. It will not use prohibited or unsafe materials or components and will always ensure environmentally sound and safe disposal of waste materials.
- The Supplier is required to inform us in writing without undue delay of breaches of any of the above obligations and to explain how the breach has been remedied and what measures it has taken to ensure that no breach recurs.
19. Final provisions
- These Terms and Conditions of Purchase and the business dealings between us and the Supplier are governed by the law of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG). It is agreed that the courts having jurisdiction at our registered office will have exclusive jurisdiction over all disputes arising out of or in connection with these Terms and Conditions of Purchase or the contractual relationship between us and the Supplier. We are also entitled to file claims at the domicile of the Supplier.
- Amendments and additions to these Terms and Conditions of Purchase are only valid if they comply with written-form requirements. This also applies to amendments to the written form clause.
- If the term "in writing" or a similar form provision is used in these Terms and Conditions of Purchase it also includes communication by email, fax or other forms of electronic communication.
- The Supplier is only entitled (a) to offset if its counterclaim is either (aa) undisputed or (bb) has been ruled final and absolute by court of law or (cc) is synallagmatic to our claim against which the customer offsets; (b) to assert a right of retention if its counterclaim is either (aa) undisputed or (bb) has been ruled final and absolute by court of law or (cc) is based on the same contractual relationship as our claim against which the Supplier asserts its right.
- If one or more provisions of these Terms and Conditions of Purchase should be or become invalid or unenforceable, this will not affect the validity of the other provisions of these Terms and Conditions of Purchase. The same applies if these Terms and Conditions of Purchase do not contain a provision that is actually necessary. The contractual partners will replace the invalid or unenforceable provision by whatever legally valid and enforceable provision most closely reflects the meaning and purpose of the invalid or unenforceable provision. Should these Terms and Conditions of Purchase be incomplete, the parties will conclude an agreement with the content they would have agreed upon had they been aware of the omission when concluding the Terms and Conditions of Purchase.
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.
HERMES PHARMA GmbH