1.1 Any sale and delivery of products by Seller shall be made exclusively in accordance with the following General Terms, which Buyer accepts by placing an order to Seller or by taking delivery of the products. These General Terms shall also apply to all future business with and orders placed by Buyer to Seller. Any deviating, amending or different terms and conditions of Buyer are excluded, even though Seller does not expressly contest or reject such Buyer´s terms and conditions.
1.2 These General Terms shall only apply towards merchants.
2. CONCLUSION OF CONTRACT
2.1 Any offer of Seller shall not be binding (without obligation) and subject to confirmation by Seller. A sales contract shall only be concluded by Seller´s written order confirmation or by Seller´s delivery of the products to Buyer and shall be governed exclusively by the provisions of the terms and conditions as set out in Seller´s order confirmation and these General Terms.
3. DELIVERY, FORCE MAJEURE
3.1 Delivery dates and delivery periods shall only be binding, if they have been confirmed by Seller in writing, and Buyer has submitted to Seller all information and documents required for the performance of the punctual delivery and Buyer has performed all acts required for such delivery.
3.2 Seller shall deliver the products EX WORKS, Offenbacher Landstr. 368D, D-60599 Frankfurt, Germany, INCOTERMS 2000. Partial delivery of the products shall be permitted and be paid by Buyer.
3.3 Seller shall be relieved from any obligation and shall not be responsible or liable for such non-performance in case of an unforeseeable, unavoidable event beyond the reasonable control of Seller („Force Majeure“), including without limitation, war, prohibition of exportation or refusal to issue export licence, strikes, lockout, natural catastrophies, change of climate which may affect the agreed quality of the products, difficulties in sourcing raw materials and energy (provided that this has not been caused by Seller´s negligence or intent). Such stipulation shall also apply in case of any Force Majeure event at Seller´s sub-contractors, sub-suppliers or agents. Seller shall inform Buyer on the occurrence of an event of Force Majeure.
3.4 Seller is not obliged to perform any additional obligations not mentioned in this sales contract or these General Terms, including without limitation, to procure (i) any certificates or documents not expressly agreed upon or (ii) to obtain any required product licenses, marketing licenses, approvals, permits or other formalities outside of Germany or (iii) to comply with packaging, labelling or marking requirements applicable outside of Germany.
4. PRICE, PAYMENT TERM
4.1 All prices are based on EX WORKS, Offenbacher Landstr. 368D, D-60599 Frankfurt, Germany, INCOTERMS 2000.
4.2 The price does not include VAT, sales, use or similar taxes, import duties or other duties levied on the products (all together called “Taxes”) or transportation cost and Buyer shall bear any such Taxes outside of Germany as well as the transportation cost.
4.3 Buyer shall pay the price for the products within thirty (30) days after the date of Seller´s invoice without any deductions. Payments shall be made to the bank account designated by Seller in his invoice. Bills and cheques shall require Seller´s prior written consent and shall only relieve Buyer from his payment obligation when Seller has received the full amount of the purchase price in his bank account. Any costs in relation to the payment by bills of cheques shall be borne by Buyer.
4.4 In the event of any delay in payment, Buyer shall pay interests of 5% above the applicable interest rate of the European Central Bank. Seller reserves the right to claim further damages due to the delay in payment.
4.5 If Buyer has to deliver a letter of credit, such letter of credit shall be issued in accordance with the Uniform Customs and Practice for Documentary Credits, ICC Publication No. 500. The opening of the Letter of Credit by the Buyer shall be made through a bank of international repute.
5. RETENTION OF TITLE
5.1 Seller shall retain the title to the delivered products until full payment of the purchase price.
5.2 A sale of the products for which a retention of title exists („Reserved Products“), including the processing of the Reserved Products, is only permitted in the ordinary course of business of Buyer. Buyer shall not pledge, encumber or use otherwise the Reserved Products as a security. Buyer hereby assigns the account receivables of the (re-)sale of the finished (processed) products of Buyer containing the Reserved Products (“Finished Products”); Seller hereby accepts such assignment. Buyer shall have the right, which may be revoked by Seller, to collect the assigned account receivables in his own name and account as a trustee of Seller. Seller shall have the right to revoke such right as well as the right to (re-)sell the Reserved Products or the Finished Products, if there is a delay in payment of the purchase price by Buyer. If Buyer has revoked such rights, Buyer shall have the right to collect such assigned account receivables in its own name and account.
5.3 In the event that the realisable value of the security is more than 10% of the assigned account receivables, Buyer shall have the right to request a release of such security to the extent such security exceeds 10% of the assigned account receivables.
5.4 In the event that Seller rescinds this sales contract due to the delay in payment of the purchase price by Buyer, Seller shall have the right to request the return of the Reserved Products to Seller, notwithstanding any other rights which Seller may have. In this case Buyer shall give full access to Seller and/or its agents and representatives to the Reserved Products and return such Reserved Products to Seller.
6. WARRANTY, EXAMINATION OF DELIVERED GOODS
6.1 Any warranty claims of Buyer require and are subject to the condition that Buyer has properly fulfilled his statutory obligations as regards the examination of the products and the notification of any defects of the products to Seller.
6.2 In the event that the delivered product is defective, Buyer shall have the right to request a subsequent performance (“Subsequent Performance”) by way of a repair of the product (provided such repair is possible) or a replacement of the defective product without any additional expense to Buyer.
6.3 In the event that the Subsequent Performance fails, Buyer shall have the right to rescind from the sales contract or reduce the purchase price.
6.4 Seller shall in no event be responsible or liable for (i) the compliance of the product with the legal, pharmaceutical or technical requirements, laws and rules outside of Germany or (ii) defects caused by Buyer or its agents or representatives, e.g. by improper storage, use or processing.
6.5 Information in catalogues, price lists and other documents provided by Seller to Buyer and product descriptions shall in no event be construed as a guarantee or representation of certain characteristics, features or pharmaceutical or performance data of the products; such guaranties or representations must be expressly agreed with and confirmed by Seller in writing.
6.6 Warranty claims due to a defect of the product shall be time-barred 12 months after the delivery to Buyer.
7. LIABILITY, DAMAGES
7.1 Seller´s statutory and contractual liability for damages shall be limited as follows: (i) Seller shall be liable only up to the amount of the typically foreseeable damages at the time of entering into this sales contract for damages caused by an ordinary or gross negligent breach of a material contractual obligation; (ii) Seller shall not be liable for any losses or damages caused by an ordinary negligent breach of an immaterial contractual obligation. The aforesaid limitation of liability shall not apply to any mandatory statutory liability, including without limitation the liability under the any applicable Product Liability Act, liability for assuming a specific guarantee or liability for negligently or intentionally caused personal injuries.
7.2 Unless otherwise set out above, the liability of Seller for damages, is excluded.
7.3 To the extent that the liability of Seller for damages is excluded or limited, such exclusion or limitation of liability shall also apply to the personal liability of the directors, employees, representatives and agents of Seller.
8. GOVERNING LAW, DISPUTES, MISCELLANEOUS
8.1 This Agreement shall be governed by and construed in accordance with the laws of Germany, excluding its conflicts of laws provisions. The provisions of the “United Nations Conventions on Contracts for the International Sale of Goods” (April 11, 1980) shall not apply.
8.2 Place of performance for delivery of the products and payment of the purchase price is Frankfurt, Germany.
8.3 Exclusive venue for any dispute, controversy or claim arising out of or in connection with this sales contract concluded hereunder shall be the courts having jurisdiction for Frankfurt, Germany. Seller shall have the right to take legal action also at any other place of jurisdiction or at any other competent court based on applicable statutory provisions.
8.4 This sales contract may be amended only in writing by agreement between the parties; this stipulation applies also to the amendment of this provision.
8.5 If any provision of this sales contract or the General Terms, is invalid or unenforceable in whole or in part, such provision shall be deemed not to be a part of this sales contract and this sales contract shall remain valid and enforceable without such provision.