General terms and conditions of Zur Rose Pharma GmbH (GTC/B2B)
The general terms and conditions set out below (hereinafter referred to as “GTC”) apply to all contracts for the delivery of goods and other services between Zur Rose Pharma GmbH (hereinafter also referred to as “we” or “us”) and entrepreneurs (Unternehmer) within the meaning of §14 German Civil Code (Bürgerliches Gesetzbuch, hereinafter referred to as “BGB”), i.e., natural and legal persons or any partnership having legal capacity that enters into the contract in the performance of its commercial or independent professional activities (hereinafter also referred to as “Customer”). These GTC apply also and especially to commercial resellers.
These GTC, as amended from time to time, will be sent to the Customer by e-mail together with the confirmation that the order has been received and can additionally be read by the Customer at any time on the homepage of Zur Rose Pharma GmbH.
These GTC apply exclusively; we shall not accept any general terms and conditions of the Customer that conflict with or deviate from these GTC unless we have approved such conflicting or deviating general terms and conditions in writing in a particular case. If we accept the performance of obligations by the Customer, in particular, payments from the Customer, this shall not be deemed approval. In ongoing business relations, these GTC, as amended from time to time, shall also apply to all future business transactions between the Customer and us.
2. Placement of orders and formation of contract
You can place your purchase order with us by post, fax or e-mail. Your purchase order must contain the documents listed in clause 3 below to be further processed. Upon receipt of your purchase order, we will examine your order and also whether the goods ordered are available. The contract is accepted by us when we confirm your purchase order or, if we do not, or cannot, confirm your order, when we send you the goods, at the latest.
All offers submitted by us in response to inquiries etc. are subject to change to the extent not expressly referred to, or agreed upon, as binding in writing.
3. Ordering conditions and terms of delivery
We reserve the right to refuse to process certain items and/or purchase orders if processing them would constitute a violation of any laws or regulations that apply within the scope of the purchase order (exclusion of delivery).
For Germany: Purchase orders shall be accepted by us only if they are from entrepreneurs (Unternehmer) who are in possession of a valid licence/wholesale permit (Großhandelserlaubnis) or manufacturing license (Herstellungserlaubnis) pursuant to §52a or §13 German Medicinal Products Act (Arzneimittelgesetz, hereinafter referred to as “AMG”). In addition, we must be provided with adequate proof of the Customer’s entrepreneurial activities (i.e., proof that the Customer is an entrepreneur).
For other countries: Purchase orders shall be accepted by us only if they are from entrepreneurs who present us with adequate marketing authorisations regarding the German wholesale permit (Großhandelserlaubnis) pursuant to §52a AMG or the German manufacturing license (Herstellungserlaubnis) pursuant to §13 AMG. In addition, we must be provided with adequate proof of the Customer’s entrepreneurial activities (i.e., proof that the Customer is an entrepreneur).
Your purchase order cannot be processed until after we have received all necessary marketing authorisation, permit or license documents in a form comprehensible to us in the German or English language and all questions regarding the purchase order have been clarified.
The goods ordered will be shipped only after payment has been received in full as provided in these GTC or as agreed by separate written agreement.
If, due to delivery problems, we are unable to carry out a purchase order or cannot do so to the extent desired, we shall so advise you and refund to you any payments already made or credit such payments against your next purchase order, if so agreed with you.
Unless otherwise agreed, all prices stated are net prices in euros. Where required by law, statutory value added tax at the rate applicable at the time the invoice is issued shall be payable in addition to the net prices. In addition to this, we will charge you for the shipping costs (see clause 6 below) and for other incidental costs, where applicable. A discount for prompt payment (Skonto) may only be deducted where this has been expressly agreed with us.
5. Delivery dates, late delivery
5.1 Delivery dates shall only be binding if we have expressly stated or agreed/confirmed in writing that they are binding.
5.2 If our own suppliers fail to supply us, or if they supply us late, we shall not be in default (Verzug) vis-à-vis the Customer unless we are responsible for our suppliers’ failure to supply us or their supplying us late. If it is an established fact that we will not be supplied with the goods ordered and this is due to reasons for which we are not responsible, we shall have the right to rescind the contract (Rücktritt).
5.3 In addition to delivery, the Customer may claim compensation for the damage caused by default if we are culpable of wilful misconduct or gross negligence. In case of slight negligence (leichte Fahrlässigkeit), our liability shall – subject to clause 12.3 below – be limited to the damage that is typical of the contract and could be foreseen at the time of conclusion of the contract, at maximum, however, 10% of the agreed purchase price for the portion of the goods with the delivery of which we are in default.
6. Shipment, transfer of risk, Transport costs; insurance
We shall make the goods ready for collection by the Customer after payment has been received in full. If so agreed, the goods may also be shipped to the Customer. Unless otherwise agreed, deliveries shall be made only after payment has been received and at the Customer’s risk ex ramp (ab Rampe; Incoterm: EXW).
If the goods are to be shipped by us, the shipping costs will depend on the quantity of goods ordered, their weight and the place of destination/distance in Germany or abroad. The shipping costs must be inquired about when the purchase order is placed, will be stated by us and shall be due and payable before the goods are shipped.
Unless otherwise agreed, the risk shall pass to the Customer as soon as we deliver the goods to the forwarding agent, the carrier or such other person as has been appointed to carry out the shipment. If the Customer wishes to have transport insurance, it will be the Customer’s responsibility to obtain such insurance.
If medicinal products are transported, this requires temperature-controlled transport with the appropriate criteria. Suitable temperature loggers need to be used to monitor compliance with the required temperature. How to ensure compliance with this requirement shall be determined based on the respective transport. The collecting agent must ensure that this requirement is complied with.
The confirmation of receipt (EU) or export certificate (non-EU) must be returned to us within 3 days after the goods have been received.
8. Payment, Right of Retention/Set-off
All payments shall normally be made by prepayment. If purchase orders are placed by a German-based Customer, payment may also be made by invoice/bank transfer or direct debit, as a rule. However, Zur Rose Pharma GmbH reserves the right to exclude certain methods of payment in particular cases without giving reasons. In this case, Zur Rose Pharma GmbH shall so advise the Customer without undue delay.
If payment by invoice is chosen, Zur Rose Pharma GmbH reserves the right to check the Customer’s creditworthiness.
8.1 If goods are delivered against prepayment to a destination in Germany, the Customer will receive an invoice for prepayment. The goods will not be delivered until after the amount indicated in the advance invoice has been received in full. If partial prepayment has been agreed, the following down-payments shall be made, depending on the amount stated in the advance invoice, before the goods are ordered:
|Up to € 50,000||30%, at minimum|
|€ 50,001 to € 100,000||50%, at minimum|
|€ 100,001 or more||70%, at minimum|
If payment by invoice is agreed with us, our invoices shall be due and payable 10 days after the invoice date. The invoice shall be enclosed with the shipment, unless otherwise agreed. All payments shall be made into the following bank account:
|Account holder||Zur Rose Pharma GmbH|
|VAT ID (UST-ID):||DE236134634|
|Tax account no. (Steuer-Nr.:)||110 108 04142|
Zur Rose Pharma GmbH reserves the right to appoint a collection company to collect receivables that are past due.
As a rule, shipments abroad are made against prepayment only. The Customer will receive an invoice for prepayment for this purpose. The goods will not be delivered until after the amount indicated in the advance invoice has been received in full. If partial prepayment has been agreed, the following down-payments shall be made, depending on the amount stated in the advance invoice, before the goods are ordered:
|Up to € 50,000||30%, at minimum|
|€ 50,001 to € 100,000||50%, at minimum|
|€ 100,001 or more||70%, at minimum|
Unless otherwise agreed, the Customer shall receive the final invoice for tax purposes with the shipment.
For payments made outside of Germany or other than by SEPA bank transfer, payment charges may be incurred. Such charges shall be borne by the Customer. All purchase orders, contracts and invoices shall be denominated in euros. This indication of the value in euros shall be binding.
Country-specific standards (such as stating foreign-currency amounts on invoices or exchange rates) shall not be taken into consideration as far as the subject matter of the contract is concerned. The transaction shall be carried out in accordance with German commercial law.
8.2 The Customer may assert a right of retention with regard to our claims only if and to the extent that the Customer’s claims on which such right is based result from the same contractual relationship and are either undisputed or have been established by a judgment that cannot be appealed against. The right to make a set-off shall be excluded unless the counterclaim has been established by a judgment that cannot be appealed against, is ready for a decision or is undisputed.
9. Retention of title
The goods supplied shall remain the property of Zur Rose Pharma GmbH until the purchase price has been paid in full.
10. Notification of defects, liability for defects
10.1 The Customer’s claims for defects of the goods shall be governed by statutory law, as amended from time to time and as modified by the provisions of this clause 10.
10.2 Obvious defects shall be reported to us without undue delay in writing and hidden defects shall be reported to us in writing without undue delay after they have been discovered, failing which the goods supplied shall be deemed faultless and approved.
10.3 Subject to statutory rights of recourse pursuant to §§478 et seq. BGB, claims for defects shall become time-barred within 12 months of the delivery of the goods.
10.4 Clauses 10.2 and 10.3 of these GTC shall not apply if we have concealed the defect with fraudulent intent or if the defect is covered by a guarantee as to quality (Beschaffenheitsgarantie).
10.5 Claims for damages for defects shall be governed by statutory law, as modified by the provisions of clause 12 of these GTC.
11. Acceptance and exchange of returned goods
Goods which are free of defects and have been supplied in accordance with the contractual agreements will not be taken back and/or exchanged.
The separate return rules of Zur Rose Pharma GmbH shall be binding for all return shipments.
12. Liability, limitation of liability
12.1 We accept unlimited liability for wilful misconduct and gross negligence.
12.2 In the event of a slightly negligent violation of material contractual obligations, i.e., obligations the violation of which jeopardizes the purpose of the contracts or the fulfilment of which is an indispensable prerequisite for the proper performance of the contract and on compliance with which the Customer could rely, our liability shall be limited to the damage or loss that is typical of the contract and could be foreseen at the time of conclusion of the contract, at maximum, however, EUR 500,000.00 for property damage and EUR 40,000.00 for financial losses. Any further liability is excluded.
12.3 The preceding provisions do not affect our liability for fraudulent concealment of defects or if we have given a guarantee as to quality (Beschaffenheitsgarantie); furthermore, they do not affect our liability for claims under the German Product Liability Act (Produkthaftungsgesetz) and/or the German Medicinal Products Act (Arzneimittelgesetz), nor our liability for damage or losses resulting from death, bodily injury or damage to health. This clause does not result in any change in the burden of proof to the Customer’s disadvantage.
12.4 With the exception of tort claims and subject to any statutory rights of recourse pursuant to §§478 et seq. BGB, all of the Customer’s claims for damages in respect of which liability has been limited in this clause 12 shall become time-barred within one year of the commencement of the statutory limitation period.
13. Putting the goods into circulation outside of Germany, Customer’s liability
13.1 If the goods are to be put into circulation outside of Germany, the Customer shall be the person responsible for putting the goods into circulation in the country of destination and shall assume all related legal obligations in this respect. The Customer particularly undertakes to observe all trade laws and regulations, including the laws and regulations relating to medicinal products, which apply in the country of destination.
13.2 If the Customer violates its obligations under clause 13.1 above either wilfully or by negligence (schuldhaft), the Customer shall be liable to compensate us for the damage suffered as a result of such violation.
14. Data protection
We shall collect and process the Customer’s data to the extent that this is necessary to handle the purchase order.
All data shall be treated as confidential and shall not be passed on to third parties, as a rule. However, by ordering goods you agree that your personal data may also be used and processed by Zur Rose Group AG. Zur Rose Pharma GmbH reserves the right to exchange data for the purposes of carrying out a credit check in case of reasonable doubt.
15. Place of performance, place of jurisdiction, governing law
15.1 Unless otherwise agreed, the place of performance for all payment and supply obligations shall be the registered office of Zur Rose Pharma GmbH.
15.2 If the Customer is a merchant (Kaufmann) or a legal person under public law or is not based in Germany, the courts at or for the registered office of Zur Rose Pharma GmbH shall have exclusive jurisdiction to settle all disputes arising out of or in connection with the contractual relationship.
15.3 All contracts shall be governed exclusively by, and construed in accordance with, German law, without regard to the United Nations Convention on Contracts for the International Sale of Goods (CISG).
Should one or more of these terms and conditions conflict with any applicable laws or regulations, this shall not affect the validity of the remaining terms and conditions, and a clause that comes closest to the intended purpose shall be deemed agreed between Zur Rose Pharma GmbH and the Customer.