General Terms and Conditions of Business
Dr. Fresen Pharma GmbH
(Last updated: 07/01/2018)
- The legal relations between us and the respective customer are governed exclusively by these General Terms and Conditions.
- Any terms and conditions of the Customer which conflict with or deviate from the following shall not apply except where we have expressly agreed to the same in writing. This also applies to all verbal agreements made with our employees.
- In the case of ongoing business relationships, these GTC apply to all future transactions between us and the purchaser, even if they are not specifically provided for in individual cases.
II. Contract conclusion
- Our offers, including the information provided in mails, brochures, price lists, etc., are non-binding, unless expressly stated otherwise.
- Orders can be placed in writing, electronically, by fax or telephone.
- If an order relates to medicinal products, narcotic drugs or other products that are subject to legal or statutory restrictions with regard to their use or distribution, the order shall be simultaneously deemed as confirmation that the customer is in possession of the respective permits to use, trade in or distribute said products. We are entitled to request documentary evidence from the purchaser before delivery.
III. Prices / Shipping / Packaging
- The delivered goods will be invoiced at the net prices valid on the day of delivery (date of delivery note) plus the statutory VAT at the rate applicable on the date of payment.
- Orders equal to or exceeding 250 € shall be delivered free of charge. We reserve the right to charge a shipping fee for orders below 250 €, depending on the destination country. This can be requested prior to ordering. By placing an order below a value of 250 €, the customer accepts the associated shipping costs.
- The customer shall take over the disposal of the packaging, unless we request to return it.
IV. Delivery / Delivery Periods
- Delivery shall be made at the request of the purchaser ext stock to the delivery address specified by the purchaser and to the delivery person specified by the purchaser (designated natural person or group of persons = destination addressee) by a logistics service provider commissioned by us. Partial deliveries shall be permitted. Consequently, the purchaser should not incur any additional costs. The above provision equally applies to any necessary second delivery, which is also free of charge for the purchaser. Regular shipping costs can be calculated for partial deliveries requested by the purchaser.
- Terms of delivery and delivery dates shall be non-binding, except where otherwise expressly agreed upon in writing. Terms of delivery shall commence upon conclusion of the contract, unless the purchaser is obligated to make advance payments. In that case, the delivery period shall commence upon receipt of the purchaser’s consideration.
- In the event of force majeure or other unforeseen circumstances, such as, for instance, operational breakdowns, legal strikes or lockouts, war, import and export bans, shortage of energy and raw materials, including non-delivery by the subcontractor, which temporarily prevent us, without any fault on our part or attributable to us, from delivering the goods by the deadline or within the period agreed, this deadline/period shall be extended in accordance with the duration of the hindrance caused by such an event. We shall only be deemed in delay after a reasonable grace period. Should the delay last longer, the purchaser may set us a reasonable deadline for substitute performance after the expiry of which the purchaser may withdraw from the contract. We are also entitled to withdraw from the contract after expiry of six weeks from the order placement. If, as a result of these circumstances, the delivery is rendered entirely or partially impossible or unreasonable, we shall be exempted from our obligation to deliver or shall be entitled to withdraw from the contract. Further statutory rights of withdrawal shall remain unaffected.
- The claim for damages is expressly excluded, unless the delay is attributable to us.
V. Acceptance of goods / Bearing of risk
- The purchaser shall ensure that our deliveries can be accepted in the period from 9 am to 6 pm from Monday to Friday. The same applies to Saturdays that are not holidays at the place of delivery, for the time period 9 to 12 AM.
- Unless otherwise agreed, delivery is carried out at our own risk. The risk passes to the purchaser upon delivery of the goods. If the shipment is delayed for reasons beyond our control, or if the customer does not accept the goods in due time in consideration of paragraph 2, even though it was proposed to do so, the risk shall pass to the purchaser upon receipt of the notice of availability.
VI. Duty of care / Due diligence
- Transport damage shall be reported to us and the delivering freight forwarder in writing without undue delay, however, within three days of delivery at the latest. The purchaser must inspect the goods for completeness and conformity with the delivery documentation immediately upon receipt and, if necessary, and report any damage, if necessary; otherwise, the delivery shall be deemed as approved.
- The purchaser is also obligated to inspect the goods for absence of faults immediately after receipt. Obvious defects shall be reported immediately in writing, but no later than three days after these have been detected. Where a subsequent defect that was could not be detected during the initial inspection becomes apparent, the purchaser shall inform us without undue delay. If no defects are reported, the delivery is deemed defect-free and approved. The purchaser undertakes to describe the defects in detail in the event of a notice of defects and, in particular, to indicate in what manner and under what circumstances a defect occurred.
- The purchaser undertakes to inspect the goods for identifiable risks independently before handing them over to third parties, in particular, risk factors for the consumers. In any case, the shelf life specifications specified on the product label must also be observed.
- The purchaser undertakes to handle the goods properly and with due care. The purchaser shall provide facilities which ensure that access to the delivered goods by unauthorized persons is excluded. The purchaser undertakes to comply with all relevant regulations regarding the handling and storage of the goods as well as all safety and other legal provisions on labeling, expiry time and advertising or to ensure compliance with them. The goods may only be handed over in original packaging with original imprint and original package insert.
Returns require our prior written consent. Returns can take place on the basis of a well-founded notice of defect or by exercising our ownership rights. Goods whose original packaging has been opened, labeled or marked as watertight in a different way are excluded from return unless there is damage in transit.
- In the event of defects or transport damages reported in due time, the purchaser shall be entitled to claim for free repair or replacement at our discretion.
- No claims for defects can be asserted in the event of defects arising after the transfer of risk as a result of improper use or storage or due to inadequate cooling.
- The purchaser cannot assert claims for damages due to defects unless our liability is excluded or restricted in accordance with Section IX of these GTCs. Any further or additional claims of the purchaser exceeding the claims provided for in Section VIII, based on a defect, are excluded.
- Regardless of the eventual statute of limitations, warranty claims are excluded if they are not asserted in court within six months of becoming aware of the defect or if they are expressly acknowledged by us in writing. Investigation, reworking or other efforts on our part, despite late complaints, do not constitute a waiver of opposition on the grounds of delay.
- A return transport of allegedly defective goods is only permitted upon our prior written consent. The purchaser shall bear the freight costs, unless the complaint has been justified.
- We assume unlimited liability for willful intent and gross negligence. In the event of simple negligence, where a cardinal obligation of a principal obligation or a collateral obligation has been violated, i.e. an obligation whose fulfillment is a prerequisite for enabling the proper fulfillment of the contract in the first place and in which the customer may normally trust or whose violation jeopardizes the achievement of the purpose of the contract (hereinafter “material collateral obligation”), our liability shall be limited to foreseeable damages upon conclusion of the contract. We are not liable for the slightly negligent violation of collateral obligations that are not part of the material collateral obligations.
- The above exclusions of liability apply neither to the fraudulent concealment of defects or the assumption of a guarantee of quality, nor to the liability for claims based on the Federal Product Liability Act and the Medicinal Products Act nor to the damages resulting from injury to life, limb or health. Reversal of the burden of proof to the detriment of the purchaser is not associated therewith.
- Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our salaried employees, personnel, representatives and vicarious agents.
X. Retention of title
- The goods delivered remain our property until full settlement of all claims resulting from the contractual relationship as well as other claims subsequently acquired against the purchaser directly associated with the goods, for whatever legal ground. Furthermore, the goods shall remain our property until the settlement of all other claims, which we acquire now or in the future (including all balance claims from the current account) against the purchaser for whatever legal ground. In the event of ongoing invoicing, the reserved goods shall be used to secure our balance claims.
- The purchaser is authorized to resell and/or process the goods subject to retention of title in the normal course of business. No right to reselling or processing can be exercised if the purchaser is in default of payment or unless it has stopped its payments only temporarily. Insofar as we are the owner of the reserved goods, we are entitled to revoke the authorization to resell, if there is a factually justified reason. In each case of justified or unauthorized resale or processing, the following provisions apply.
- The retention of title extends to the full value of the products resulting from the processing, mixing or combination of our products, whereby we shall be deemed manufacturer as defined in Section 950 of the Federal Civil Code [BGB]. If, in the case of processing, mixing or connection with goods of third parties, their ownership rights persist, we acquire co-ownership in the ratio of the invoice values of the processed, mixed or connected goods. In all other cases, the same shall apply to the resulting product as to the goods delivered subject to retention of title. The purchaser is only a custodian, who is entitled to the right conferring prospective entitlement to the new product, which corresponds to the previous state.
- The purchaser hereby assigns all its claims arising from the resale of the goods, along with all ancillary rights, irrespective of whether the goods which are subject to this retention-of-title clause are resold without or after further processing. We herewith accept the assignment. With this assignment, the corresponding claims of the purchaser against the payers of the statutory and private health insurance policies are included as well as against the respective data center commissioned with the prescription settlement. However, it is clear that the purchaser is not obligated to act in respect of the claims assigned for security, which would violate social or professional bans or duties. In particular, the purchaser is not obligated to provide us with the patient or prescription data protected under the social or data protection regulations, regardless of whether these are provided in documents or electronic forms.
- Until further notice, the purchaser is entitled to collect the claims assigned to us. If an objective ground exists, we shall be entitled to revoke the direct debit authorization. The purchaser is not entitled to discuss the claims assigned to us in any other way, e.g., by assignment or pledge. We are authorized to collect the claims, however, we shall refrain from collecting the claims as long as the purchaser meets its payment obligations in due form.
- Where the purchaser fails to fulfill its payment obligations properly, it shall hand over to us a list of all goods subject to our retention of title at our first request. In the same case, the purchaser shall hand over to us a list of the assigned claims at our first request and, subject to and in compliance with para. 2 (b) clause 3, indicate the names and addresses of the debtors with the amount of the claims as well as all information required for collection. Subject to and in compliance with paragraph 2 (b) clause 3, the purchaser shall participate in all measures necessary for safeguarding our rights. At our first request, the purchaser is also obligated to and we are entitled to inform the debtors of the assignment of claims.
- The purchaser is obligated to treat the goods subject to the retention of title separately and with due care. It shall take out an adequate insurance policy at its expense against usual risks, in particular against fire, burglary and water damage at replacement value, and obtain the insurance cover. Upon request, the insurance policy shall be sent to us for inspection. The purchaser hereby assigns to us its claims against the insurance, insofar as it relates to our reserved ownership rights. As a precautionary measure, the purchaser is obligated to reassign the aforementioned claims to us, where necessary. We declare the assignment to the purchaser with the proviso that this remittance becomes effective if and as soon as the retention of title has expired due to complete settlement of all our claims against the purchaser.
- As long as the retention of title applies, pledging, transfer by way of security, lease or other assignment or alteration of the goods subject to retention of title, which affects our security, requires our prior written consent. The right of the purchaser to sell the goods in the course of a proper business transaction and subject to the aforementioned conditions shall remain unaffected. Any access by third parties to the delivered goods that are subject to retention of title or any claims assigned to us, seizure of the goods subject to retention of title or other access by third parties shall be reported to us in writing without undue delay along with the name and address of the seizing party or the third party concerned. The seizing and/or accessing party shall be informed of the reservation of title in our favor without undue delay.
- Should the purchaser cease payment, apply for insolvency proceedings over its assets or should insolvency proceedings be instituted over its assets, the purchaser shall be obligated at our request to immediately surrender the goods subject to retention of title to finally dispose of these. Furthermore, in the event of breach of contract by the purchaser, in particular in the event of payment default, we are entitled to demand the goods subject to the retention of title from the purchaser. The purchaser shall accept the removal of the delivered goods and grant us access to its storage and business premises for this purpose. Repossession of goods sold under retention of title shall not be construed as a withdrawal from the contract. If we have set a deadline with a warning of non-acceptance and we then sell the goods subject to the retention of title, the purchaser shall be liable to cover the balance between the purchase price and the proceeds of the sale. In addition, it shall bear the cost of the withdrawal. The customer shall bear all costs which need to be incurred in order to ensure that such intervention discontinues and to ensure the recovery of the goods delivered.
- We shall be obligated at the request of the purchaser and at our discretion to waive the retention of tittle, i.e. to release collateral from transfers by way of security and advance assignments once the purchaser has settled all the claims pertaining to the purchased object or once the realizable total value of securities granted to us from retention of title, transfers by way of security and advance assignment exceeds the total amount of claims against the purchaser by more than 10%.
XI. Payment / Payment default / Set-off / Retention
- Our invoices are due upon invoicing and, unless otherwise agreed in individual cases and accordingly stated on our order confirmation, payable net within ten (10) calendar days of the invoice date without deduction. The purchaser shall be deemed in default of payment upon expiry of the aforementioned payment period.
- In the event of late payment, the outstanding claim shall be subject to interest at 8 percentage points above the base interest rate. The right to claim a higher amount of damages caused by default remains reserved.
- Only uncontested claims, claims upheld by a final and unappealable court order or claims recognized by us may be offset against our compensation claims. The purchaser may only offset such claims against us that are undisputed, have reached the decision stage or have been recognized by the final judgment of a court.
- If the purchaser is in arrears with a payment or has suspended its payments or the facts are tantamount to the suspension of payment, we are authorized to demand advance payments or sureties for further orders prior to performance of partial deliveries while reserving our other rights. We are also entitled to withdraw in whole or in part from other contracts concluded with the purchaser, or claim for compensation owing to non-performance following a reasonable grace period. If payment by installments has been agreed and the purchaser is in default, the outstanding amount shall fall due immediately.
XII. Data protection
We process and store the data of the customer known to us, to the extent necessary and useful for the further business relationship, in strict compliance with the GDPR (EU-DSGVO) and the Federal Data Protection Act (BDSG) as amended.
XIII. Place of performance / Legal venue / Applicable law
- The place of performance for all obligations arising from the contractual relationship shall be Koblenz.
- If the purchaser is a merchant, a corporate body under public law or a special fund under public law, or does not have its registered office or domicile within the Federal Republic of Germany, the legal venue for all disputes arising out of or in connection with the contractual relationship shall be Koblenz.
- These GTCs shall be governed by the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
The invalidity or unenforceability of any provisions in these GTCs shall not affect the validity or enforceability of the other provisions.