General Terms and Conditions of Business of Pharmycron Service GmbH,
Am Schindwasen 16, 66386 ‚St. Ingbert
§ 1 Application
(1) All deliveries, services and bids of Pharmycron Service GmbH (hereinafter also referred to as the “User”) shall be exclusively on basis of the General Terms and Conditions of Service and Delivery, insofar as the contract partners (hereinafter also referred to as the “Client”) are businesses in the sense of § 14 sub-section 1 BGB(German Civil Code). They are a component of all contracts that the User concluded with his contract partners on the deliveries of services offered by him. They shall apply also to all future deliveries, services or bids to the contract partner, even if they are not separately agreed again. Deliveries and services in the aforementioned sense are in particular the micronization of pharmaceutical raw materials as well as the measurement of particle size in the Client’s contract. In any cases of doubt the following regulations apply at least analogously.
(2) Terms and Conditions of Business of the Client or of third parties shall not apply even if the User does not oppose their application in an individual case, other worded conditions do not apply. Even in the event that the User makes reference to a piece of writing that is included in the Terms and Conditions of Business of the Client or a third party of indicates such, this does not include any agreement with the validity of those Terms and conditions of Business.
§ 2 Bid and Contract Conclusion
(1) All bids of the User are without obligation and unbinding, insofar as they are not expressly labelled as binding or contain a determined acceptance deadline. Orders or contracts can be accepted by the User within four weeks of receipt.
(2) The written concluded contract is solely decisive for the legal relationship between the User and the Client, including these General Terms and conditions of Service and Delivery, consisting of contract offer and acceptance. These reiterate all agreements made between the contract partners on the object of the contract in their entirety. Verbal agreements of the User prior to conclusion of this contract are not legally binding. Supplements and amendments to the agreements concluded including these Terms and Conditions of Business require the written form to be valid (constitutive double written form clause).
(3) Information of the User on the object of the delivery or service (for example weights or measurements etc.) as well as depictions of the same (for example drawings or illustrations are only approximately decisive, insofar as no exact agreement is specified for use for its contractually envisaged purpose. They are not guaranteed creative attributes, but rather descriptions of labels of the delivery or service. The usual commercial deviations and deviations that occur on grounds of legal regulations or lead to an improvement are permitted, insofar as they do not harm the usability for the contractually intended purpose.
(4) The User retains ownership or copyright to all the offers and cost estimates as well as the drawings, illustrations, calculations, prospectuses, catalogues, models and other documents and aids made available to the Client. The Client may neither make these or their contents accessible to third parties as such, not make them known or exploited or copied by him/her or by third parties. On demand of the User he/she must return these in their entirety to him and destroy any copies that may have been made, if they are no longer necessary to him/her in the ordinary course of business or if negotiations do not lead to conclusion of a contract.
§ 3 Prices and Payment
(1) The prices apply to the range of services and delivery set forth in the bid respectively the confirmation of order. Extra or special services shall be invoiced separately. The prices are in EURO ex works including packaging, unloading, transport insurance and the legal VAT: in the case of exports the customs duty and fees and other public expenses, insofar as nothing other is agreed in writing. The deduction of discounts also requires a written agreement.
(2) Insofar as the agreed prices are based on the User’s list prices and delivery is only to take place more than four months after conclusion of the contract, the User’s list prices valid at the time of delivery shall apply (in each case less any agreed percentage or fixed discount).
(3) The Client is entitled to adapt the prices supplementarily, in particular if cost increases on grounds of tariff agreements, material price increases or similar occur. A condition of price adaptation is always proof of a costs change that has occurred.
(4) Invoice sums are payable within eight days from the invoice date without any discount. The date of receipt by the user is decisive for the date of payment. In the event of transfers and being in doubt other methods of payment made only for the sake of fulfilment, only the unconditional credit on the account of the User has the debit-releasing effect. If the Client does not pay be the deadline, the outstanding sums shall bear interest from the due date at 8 percentage points over the base interest rate valid at the time p.a.: the application of higher interest and further damages in the case of delay remains unaffected.
(5) Setting off against counter claims of the Client or retention of payments because of such claims is only permitted insofar as the counter claims are undisputed or legally determined.
(6) The User is entitled to carry out outstanding deliveries or services only against pre-payment or provision of securities, if after conclusion of the contract circumstances have become known to him, which are suitable to significantly worsen the creditworthiness of the Client and on grounds of which the payment of the outstanding claims of the User by the Client from the corresponding contractual relationship (including from other individual contracts, for which the same framework agreement applies) is endangered.
§ 4 Delivery and Delivery Times
(1) Delivery is ex works.
(2) Deadlines and dates for deliveries and services put into prospect by the User are only approximate, unless a fixed deadline or a fixed date has been expressly promised or agreed. Insofar as shipment has been agreed, delivery deadlines and delivery times refer to the time of transfer to the carrier, freight forwarder or other third parties responsible for the transportation.
(3) The User can – unaffected by his rights on delay of the Client – demand an increase from the Client in delivery and delivery dates or a postponement of delivery and delivery dates by the timeframe in which the client is not fulfilling his contractual obligations towards the User.
(4) The User is not liable for impossibility of delivery or for delays in delivery, insofar as these are caused by force majeure or other events not foreseeable at the time of contract conclusion (for example breakdowns of all kinds, difficulties in purchasing materials or energy, transport delays, strikes, legal lock-outs, lack of workforce, obtaining the necessary regulatory permissions, regulatory measures or lack of, incorrect or untimely delivery by our suppliers), for which the User is not responsible. Insofar as such events make the delivery or services much more difficult or impossible for the User, and the hindrance is not only of a temporary nature, the User is entitled to withdraw from the contract. In the event of a hindrance being of a temporary nature the delivery or service deadlines shall increase, or shall be extended by the term of the hindrance plus an appropriate preparation time.
(5) The User is entitled to make partial deliveries if:
- the partial delivery can be used by the Client in the framework of the contractual usage purpose.
- delivery of the other products ordered is assured and
- the client does not incur significant extra expenses or additional costs (unless the User expresses willingness to pay these costs).
(6) If the User is in delay with a delivery or service or a delivery or service becomes impossible for him, regardless of grounds, the liability of the User is limited to damage compensation pursuant to § 7 of these General Terms and Conditions of Business.
§ 5 Place of Fulfilment, Dispatch, Packaging, Transfer of Risks, Acceptance
(1) The place of fulfilment for all obligations from the contractual relationship is 66386 St. Ingbert, insofar as nothing other has been agreed.
(2) The type of dispatch and the packaging are subject to the dutiful discretion of the User.
(3) The risk transfers to the Client by latest with the transfer of the object of delivery (whereby the start of the loading process is decisive) to the shipper, freight carrier or other third party contracted to carry out the delivery. This shall also apply if partial deliveries take place or the User has taken on other services (for example dispatch etc.). If the dispatch or the transfer is delayed as a result of circumstance for which the Client is responsible; the risk transfers to the Client on the day the User is ready to deliver and has announced this to the Client.
(4) Storage costs after the transfer or risk are for the account of the Client. If storage is undertaken by the User the storage costs amount to 0.5 % of the invoice amount of the products to be stored per started week. The application of proof of further or lesser storage costs remain reserved.
(5) The User shall only insure the consignment against theft, breakage, transport, fire and water damages or any other insurable risks on the express wish and for the account of the Client.
(6) Insofar as the goods are dispatched on reusable crates, the Client is obliged to the Cologne Palette Exchange at the place of unloading toward the company making the delivery.
§ 6 Warranty
(1) The term of the warranty is a year from the date of delivery.
(2) The products delivered must immediately be carefully checked on delivery to the Client or to a third party determined by the Client. They are deemed accepted if the User does not receive a dunning letter with regard to obvious defects or other defects that would have been recognised on a careful check, within seven working days from delivery of the products, or otherwise within seven working days after discovery of the defect or the time when the defect was noticeable to the client on normal use of the object of delivery without closer examination, in the form determined in § 2 sub-section 2 P. 5. On demand of the User the defective contract product must be returned freight prepaid to the User. In case of a justified complaint the User shall pay the costs of the cheapest transport method; this does not apply insofar as the costs increase because the delivery object is located at another place other than the place of intended use.
(3) With regard to defects in the products delivered the User is obliged and entitled after an appropriate deadline to make the choice of improvement of replacement delivery. This right is available for the User on two occasions. In case of failure, that is to say the impossibility, refusal or inappropriate delay in the improvement or replacement delivery, the Client may withdraw from the contract, or reduce the purchase price accordingly.
(4) If a defect is based on the fault of the User, the Client may claim damage compensation only under the conditions determined in § 7.
(5) The warranty shall become inapplicable if the client changes or has the object of delivery changed by third parties and the removal of the defect is made impossible thereby or unreasonably more difficult. In any case the Client shall pay any extra costs of the defect removal incurred by the change.
§ 7 Liability for Damage Compensation on Grounds of Fault
(1) the liability of the User for damage compensation, regardless of legal grounds, in particular impossibility, delay faulty or incorrect delivery, breach of contract, breach of obligations at contract negotiations and unpermitted dealings is limited to the terms of this § 7 insofar as it is on grounds of fault hereby in each case.
(2) The User is not liable
a) in the event of simple negligence of his bodies, legal representatives, employees or other vicarious aides;
b) in the event of gross negligence of his non-managerial employees or other vicarious aides, insofar as no breach of significant contractual obligations is concerned. Significant contractual obligations are the obligation to undertake timely and defect-free delivery and installation, as well as consultation, protection and duty of care, which enable the Client’s contractual use of the object of delivery and serve the purpose of protecting body and life of employees of the Client or third parties or the property of the Client from significant damages.
(3) Insofar as the User is liable for damage compensation pursuant to the grounds in § 7 sub-section 2, this liability is limited to damages that the User envisaged at conclusion of the contract as a possible result of a breach of contract or should have envisaged taking into account the circumstances that were known to him or should have been known to him if he had used the commercial duty of care. Direct damages and supplementary damages that are consequences of defects in the object of delivery are furthermore only payable insofar as such damages can typically be expected with normal contractual use of the object of delivery.
(4) In the event of liability for slight negligence the payment obligation of the User for material or personal damages is limited to a sum of EUR 500,000.00 per damage event, even if it concerns a breach of significant contractual obligations.
(5) The aforementioned liability exclusions and limitations apply to the same extent for bodies, legal representatives, employees and other vicarious aides of the User.
(6) Insofar as the User gives information or acts in an advisory capacity and this information or advice is not included in the contractually agreed services owed, this shall be unbinding, free of charge and excluding and liability.
(7) The limitations of this § 7 do not apply to liability of the User for malicious intent, on grounds of damage to life, body or health or pursuant to the products liability law.
§ 8 Retention of Proprietary Rights/ Pledging Rights
(1) The retention of proprietary rights agreed as follows serves to secure all existing and current claims of the User against the Client from the existing service and delivery relationship (including balance claims from a current account relationship limited to this supply agreement), insofar as the delivered products are under the ownership of the User. The same shall also apply if the User has purchased ownership by law in the products purchased on the part of the Client or third parties.
(2) The products delivered to the Client by the User remain the property of the User until complete payment of all ensured claims. The products as well as products recorded under the retention of proprietary rights, which pursuant to this clause take their place shall be referred to as reserved goods.
(3) The Client stores the reserved goods for the User free of charge.
(4) The Client is authorised to process and sell on the reserved goods in the ordinary course of business, until the event of exploitation (sub-section 9). Pledging and issuing as security are unpermitted.
(5) If the reserved goods are processed by the Client, it is agreed that the processing is done in the name of and for the account of the User as the manufacturer and the ownership transferred directly to the User or – if the processing contains materials from several owners or the value of the processed matter is higher that the value of the reserved goods – the co-ownership (severalty) of the newly created items in relationship with the value of the reserved goods to the value of the newly created items shall be purchased. In the event that no such ownership is purchased by the User, the Client shall already transfer his future ownership or – in the aforementioned relationship – co-ownership in the newly created item to the User for security. If the reserved goods are blended with other goods to a uniform item or inseparably mixed and one of the other items is regarded to be the main item the User, insofar as the main item is his property, shall transfer to the Client a pro-rata share of the ownership in the uniform item in the range named in Sentence 1.
(6) In the event of sale of the reserved goods the Client hereby already transfers the related claim against the buyer for the sake of security – in the case of co-ownership, pro-rata pursuant to the co-ownership share – to the User. The same applies to other claims that take the place of the reserved goods or otherwise accrue with regard to the reserved goods, such as insurance claims for example, or claims on unpermitted handling on loss or destruction. The User revocably empowers the Client, to collect the claims assigned to the User in his own name for account of the User. The User may only revoke this collection empowerment in the event of reclamation.
(7) If third parties access the reserved goods, in particular through pledging, the Client must inform them immediately of the ownership of the User and inform the User of this, in order to enable him to apply his ownership rights. Insofar as the third party is not in a position to pay the court or out-of-court costs occurring in this regard, the Client shall be liable towards the User.
(8) The User shall release the reserved goods as well as items taking their place on demand, and on own choice, insofar as their value exceeds the sum of the insured claims by more than 50 %.
(9) If the User withdraws from the contract (case of reclamation) on behaviour of the Client in breach of contract – in particular late payment, the User is entitled to demand return of the reserved goods.
(10) The User has a lien on all movable property of the Client, that is used for the purposes of manufacture or other works in the possession of the User for all the claims of the User against the Client from the existing contractual or framework contractual performance and delivery relationship between the contract partners (including balance claims from a current account relationship limited to this delivery relationship). If the Client insofar gives the user a product purchased under retention of proprietary rights for his possession, the lien to the contingent property rights is to the benefit of the Client. Moreover the legal regulations of the legally ordered lien shall apply.
§ 9 Final Provisions
(1) The place of jurisdiction for any disputes arising from the business relationship between the User and the Client is at our choice 66386 St. Ingbert or the headquarters of the Client. For claims against the User 66386 St. Ingbert is the exclusive place of jurisdiction. Mandatory legal regulations regarding exclusive places of jurisdiction remain unaffected by this regulation.
(2) The relationship between the User and the Client is subject exclusively to the law of the Federal Republic of Germany, under exclusion of the regulations of international private law and the UN convention of contracts for the international sale of goods (CISG).
(3) Insofar as this contract or these General Terms and Conditions of Delivery contain gaps, legally effective regulations shall apply to fill these gaps which the contract partners would have agreed according to the financial targets of the contract and the purpose of these General Terms and Conditions of Delivery, if they had been aware of these gaps.
