General Business Terms and Conditions

General Terms and Conditions of Sale and Delivery

(General Terms and Conditions)

As of: September 2016

 

I. Scope of Application

1.   These General Terms and Conditions apply exclusively to all transactions between sellers and the following parties: legal entities under public law; a special fund under public law pursuant to Section 310 Paragraph 1 of the German Civil Code (BGB); or a company that is acting within the course of its commercial or independent professional activity at the time of entering into the Contract. Contradictory or deviating provisions or other limitations of the Buyer shall not be recognized unless the Seller has explicitly agreed to the validity of such in writing. These General Terms and Conditions shall also apply to all future transactions with the Buyer, so far as legal transactions of a similar nature are concerned.

 

II. Offer and Entering into a Contract

1.   The Seller’s offers are hereby non-binding and subject to change. The Contract shall come into effect only through the acceptance of the Seller (order confirmation or delivery). The Seller hereby reserves the right to determine minimum order quantities as a requirement for entering into a contract.

 

III. Prices and Payments

1.   The prices specified by the Seller are net prices ex-works plus statutory VAT. The Seller hereby reserves the right to choose the most economical dispatch route. If the Buyer requests a particular method of shipment e.g. express goods, express freight, couriers, airmail, cold chain etc., the Buyer shall incur the additional costs plus statutory VAT.

2.   The Seller shall deliver against cash on delivery or on account, payable 8 days after the receipt of the goods without deduction. All payments shall be deemed to be settled only when the amount is at the Seller's disposal. If the Buyer does not pay by the due date, the outstanding amounts shall accrue interest from the due date at the legal percentage points above the base rate p.a. A separate warning shall not be required. The enforcement of higher interest rates and further damage in the event of default hereby remains unaffected. During the default period, the Seller is not obliged to provide further services.

3.   The Seller hereby reserves the right to choose the most economical dispatch route for the invoice. The Buyer is hereby obliged to send the information necessary for this to the Seller. If the invoice is sent electronically as a standard paperless transmission, the Buyer may alternatively request an invoice in paper format. The additional cost thereby incurred to the Seller of €2 plus VAT shall be billed to the Buyer.

4.   Rights of retention may be enforced only to the extent and amount corresponding to the counter value. The Seller is hereby entitled to avert the right of retention through a security, which may also be provided in the form of a bank guarantee.

5.   If there is doubt as to the Buyer's ability to pay, the Seller may request advance payments or securities and revoke granted terms of payment.

 

IV. Material of Goods, Technical Advice, Usage and
Processing

1.   On principle, only the material described in the Seller's product descriptions and specifications and on the Seller's labels shall be deemed to be the material of the goods. Public statements, claims or advertising shall not constitute a description of the material of the object of sale.

2.   The verbal, written or test-based technical advice given by the Seller relating to the use of the goods shall be accurate to the best of the Seller's knowledge but shall only be non-binding information, also in regard to any third-party property rights, and shall not release the Buyer from independently inspecting the products delivered by the Seller for their suitability for the intended processes and purposes. The application, usage and processing of the products shall take place outside of the Seller's control and are therefore solely the responsibility of the Buyer.

 

V. Delivery and Risk Transfer

1.   If shipment has been agreed, delivery periods and delivery dates shall relate to the time of handover to the transport company, carrier or other third party commissioned with transport. So far as a fixed delivery date is agreed, the Buyer is to set an appropriate grace period, generally of four weeks, in the event of delayed delivery. The Seller hereby reserves the right to claim that the Seller did not receive their correct and timely delivery. The Seller is hereby entitled to carry out partial deliveries so far as this seems advantageous for swift handling and shall not incur the Buyer any additional costs (unless the Seller declares that they are prepared to assume these costs).

2.   The day of delivery shall be classed as the day on which the goods leave the factory or warehouse, or, if this day cannot be determined, the day on which they are at the disposal of the Buyer.

3.   Force majeure of any kind, unforeseeable operational, transport or shipping disturbances, fire damage, floods, unforeseeable shortages of labour, energy, raw materials or excipients, strikes, lockouts, government orders or other obstacles for which the Party obliged to perform is not responsible, which reduce, delay, prevent or render unreasonable the manufacturing, shipment, acceptance or usage, shall exempt the Party from the obligation to deliver or accept for the duration and extent of the disturbance. If the delivery and/or acceptance are/is delayed by more than eight weeks as a result of the disturbance, both Parties are hereby entitled to withdraw. In the event of partial or complete loss of the Seller's sources of supply, the Seller is not obliged to stock up from external suppliers. In this event, the Seller is entitled to distribute the available quantities of goods under consideration of the Seller‘s own requirements.

4.   Shipment shall always take place at the expense and risk of the Buyer, unless explicitly agreed otherwise in writing. The risk of destruction, loss or damage to goods shall be transferred to the Buyer upon handover of the goods to the transport company or carrier, but no later than upon leaving the warehouse, or upon leaving the factory in the event of direct shipment ex-works, or upon selection if the Buyer is collecting the goods. This shall also apply if partial deliveries take place or if the Seller has assumed the shipment costs. If the shipment is delayed as a result of circumstances for which the Buyer is responsible, the risk shall transfer to the Buyer from the day of readiness for shipment onwards. The Buyer shall be free to take out insurance at the request and expense of the Buyer.

 

VI. Data Storage

1.   The Seller hereby informs the Contractual Partner that they shall save and process the Contractual Partner‘s data electronically to the extent necessary for business and permitted within the scope of the German Federal Data Protection Act (BDSG, Section 28).

 

VII. Warranty, Material Defects

1.   The warranty period shall equal one year from delivery.

2.   Immediately upon delivery, the delivered goods are to be carefully examined by the Buyer or by the third party determined by the Buyer. They shall be deemed to have been approved if the Seller has not received a written notification of defects regarding visible defects or other defects which were apparent during an immediate, careful examination within 8 days of handing over the goods, or otherwise within 8 days of discovering the defect or any time sooner at which the defect was apparent to the Buyer during normal usage of the goods without closer inspection. At the request of the Seller, the rejected goods are to be returned to the Seller, freight prepaid. If the notification of defects is justified, the Seller shall reimburse the costs of the most favorable shipping route; this shall not apply if the costs increase as a result of the goods being at a location other than that of their proper use.

3.   The warranty shall not apply if the Buyer, without the approval of the Seller, changes the goods or has the goods changed by a third party.

4.   The Buyer is hereby obliged to inform the Seller immediately if the Buyer becomes aware of any recourse occurring in the supply chain.

 

VIII. Liability for Compensation for Damage due to Fault

1.   Irrespective of any legal grounds, the liability of the Seller for compensation for damage, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations within contractual negotiations and unlawful conduct, so far as it is a matter of fault in each case, is limited pursuant to this Clause 8.

2.   The Seller shall not be liable in the event of simple negligence on the part of the Seller‘s bodies, legal representatives, employees or other vicarious agents, to the extent that a breach of essential contractual obligations is not concerned. Essential to the Contract are the Seller‘s obligation to deliver the goods free from essential defects, the observance of the delivery period, and legal advisory, protective and custodial obligations and information requirements, which allow the Buyer to use the goods pursuant to the Contract or are intended to protect the life and limb of the Buyer's personnel or protect the Buyer's property from considerable damage.

3.   Insofar as the Seller is liable for compensation for damage pursuant to Clause 8 Sub-clause 2, this liability shall be limited to damage which the Seller foresaw as a possible consequence of a breach of contract upon entering into the Contract or which the Seller would have foreseen had the Seller exercised due care and attention. Indirect damage and consequential damage as a result of defects in the goods shall also only be eligible for compensation in the event of gross negligence or intent and to the extent that such damage is typically to be expected as part of the proper use of the delivery item.

4.   In the event of liability for simple negligence, the Seller's obligation to pay compensation for material damage and the resulting further financial losses shall be limited to an amount of €100,000 for each case of damage, even if a breach of essential contractual obligations is concerned.

5.   The aforementioned exclusions and limitations of liability shall apply to the same extent for the Seller's bodies, legal representatives, employees and other vicarious agents.

6.   If the Seller provides technical information or acts as an adviser, and this information or advice is not within the contractually agreed scope of service owed by the Seller, this shall take place free of charge and under the exclusion of any liability.

7.   Claims made by the Buyer for compensation for damage shall be subject to a limitation period of one year from handover/delivery of the object of sale and purchase to the Buyer.

8.   The limitations of this Clause 8 shall not apply to claims for compensation for damage as a result of injury to life, limb or health during proper use and/or claims for compensation for damage as a result of damage caused by the Seller intentionally or due to gross negligence on the Seller’s part.

 

IX. Retention of Title

1.   The Seller shall retain the title to the goods until the receipt of all payments from the Sale and Purchase Agreement. The recipient is hereby entitled to use the goods subject to the retention of title within the ordinary course of business. Further dispositions (e.g. pledging, transferring by way of security or selling after payments have ceased) are hereby not permitted. Pledging of the goods subject to the retention of title is to be reported to the Seller immediately, with a copy of the pledge protocol enclosed. Independent of this, the Buyer is to inform the pledge creditors in advance of the existing rights relating to the goods. In the event that action against the legitimacy of individual enforcement acts with the purpose of preventing the enforcement against the assets of a third party may be necessary (Sections 771 et seq., German Code of Civil Procedure (ZPO)), the Buyer is to bear the costs of this procedure to the extent that there is no reimbursement by the third party.

2.   If the Buyer sells the goods subject to the retention of title, the resulting purchase price claims shall be deemed to be assigned to the Seller as soon as they arise. The Buyer is hereby authorized to collect the claims until this is prohibited by the Seller due to the Buyer's default of payment or deterioration of assets. In this event, for each individual claim, the Buyer is to submit to the Seller upon request a declaration of assignment and a confirmation of the Seller‘s retention of title with regards to third parties.

3.   If the Seller's goods are processed by the Buyer, the Seller shall be deemed to be the manufacturer and shall acquire co-ownership of the new items in proportion to the invoiced value of the goods. In this event, the Buyer shall be deemed to be the custodian.

4.   In the event that the Buyer is in default of payment, the Seller is hereby entitled to demand the surrender of the goods to which the Seller holds title, at the cost of the Buyer, without exercising the right to withdraw and without setting a grace period.

5.   If the value of the security exceeds the claims of the Seller against the Buyer by more than 20%, at the request of the Buyer, the Seller is to release the securities to which they are entitled accordingly, of the Seller’s own accord.

 

X. Resale

1.   The Seller hereby accepts no responsibility for whether or not a resale of veterinary medicines takes place abroad in agreement with the applicable legislation in the respective country. The Seller also does not guarantee that no third-party industrial property rights will be breached abroad.

 

XI. Applicable Law, Place of Fulfilment, Place of Jurisdiction

1.   The contractual relationships are hereby governed exclusively by the law of the Federal Republic of Germany. The provisions of the United Nations Convention on Contracts for the International Sale of Goods are hereby not applicable. The place of fulfilment and place of jurisdiction for all disputes arising between the Parties shall be 49377 Vechta. This shall also apply if the Buyer has no general place of jurisdiction in Germany or if the Buyer's domicile or usual place of residence is not known at the time legal action is taken. The Seller shall be free to take legal action at the place of jurisdiction of the Buyer.

 

XII. Final Provisions

1.   Should individual provisions of the Contract with the Customer, including these General Terms and Conditions, be or become entirely or partially ineffective, the validity of the remaining provisions shall remain unaffected thereby. The entirely or partially ineffective regulation shall be replaced by a regulation of which the economic purpose most closely approximates that of the ineffective regulation.

 

bela-pharm GmbH & Co.KG

Lohner Straße 19, D- 49377 Vechta, Germany

Tel.: +49 4441 873-0; www.bela-pharm.com