General terms and conditions of sale
of Dr. Kleine Pharma GmbH
These General Terms and Conditions shall govern business transactions with entrepreneurs, legal persons under public law, or special assets under public law (entities as stated in Section 310 Subsection 1 of the German Civil Code ("Bürgerliches Gesetzbuch" -BGB)).
I. General provisions
1. The subsequent General Terms and Conditions shall govern all business relationships with our customers, including the provision of consulting services, unless agreed otherwise. These General Terms and Conditions shall apply to future contracts even if they have not been expressly included again. These General Terms and Conditions do not apply to business transactions with consumers.
2. Any customer's terms and conditions are not applicable, even if we have not explicitly objected to them.
II. Offers and Ordering
1. Our offers are non-binding and subject to change unless agreed otherwise. They constitute an invitation to the customer to submit an offer to conclude a contract itself. We will decide within 4 weeks whether we accept such an offer.
2. Delivery contracts shall not be considered concluded until we have issued a written order confirmation; alternatively, we may also declare acceptance delivering the goods.
3. Verbal agreements as well as agreements by phone are only binding if confirmed in writing. Consulting provided by our members of staff is only binding if confirmed in writing.
III. Prices and Terms of Payment
1. Our prices are stated ex works unless agreed otherwise in writing. All pricing information is in EURO excluding applicable value added tax, plus packaging, special transport-costs, toll for road use, freight beyond the German border, customs duty, insurance and other expenses associated with the delivery, e.g. costs for service providers in case of delivery into embargoed countries.
2. We reserve the right to increase our prices accordingly if an increase in costs occurs after conclusion of the contract, including but not limited to an increase caused by labour agreements or increase in the prices of materials, and there is at least a period of 3 months between conclusion of the contract and the intended delivery date.
3. Payments are due within 14 days as of the invoice date without any deductions.
4. Due payments not covered by a bank guarantee are subject to an interest rate of 5% p.a. In case of default, the statutory default interest, currently to the amount of 9 percent p.a. above the basic interest rate according to art. 247 German Civil Code, shall apply.
5. We do not accept cheques or bills of exchange.
6. In case of default of the customer by more than 2 weeks, we are entitled to demand immediate payment of all receivables and to convert the customer relationship to advance payment. If circumstances indicating a lasting deterioration of the creditworthiness of the customer, including but not limited to an attempt to settle debts out of court, application for insolvency proceedings or a payment moratorium by the customer or third parties, and similar incidents indicating that the creditworthiness is doubtful, become known to us before delivery, we are entitled to request advance payment before production or delivery.
7. The customer is not entitled to make any deductions, reductions, or a granted credit enhancement or set-offs itself unless the customer's claim is undisputed or has been established as final and absolute.
1. Delivery periods are determined as of the date of order confirmation. They are subject to the fulfilment of the customer´s own contractual and cooperation obligations including the payment agreements as well as the clarification of all product related requirements and details by mutual agreement. It will be deemed observed upon notification of readiness for dispatch. If the customer has to provide goods to us, the periods will commence upon timely provision only.
2. Delivery takes place ex works (Incoterms 2020) of our respective manufacturing facility. Upon making the goods ready for dispatch, the risk passes over to the customer.
3. The goods will be packaged for shipping, delivery and storage according to the order confirmation. The costs associated with special packaging at the customer's request will be invoiced separately at cost.
4. The customer will bear the costs for transport, toll for road use, insurance, incl. import tax, customs duty, and value added tax.
5. If shipping is delayed at the customer's request, the costs incurred by storage at cost but at least at 15 €/month and pallet space, beginning 14 days after readiness for dispatch, will be invoiced to the customer.
6. Partial deliveries are permitted if reasonable.
7. The cost associated with the disposal of sold products free of defects and the disposal duties will be borne by the customer.
V. Legal provisions
1.The customer is liable for compliance with legal and regulatory requirements regarding onward transport, use and labelling of our goods. We do not accept any liability for marketability in the country of use. Regulatory questions regarding the intended use by the customer have to be clarified solely by the customer itself unless agreed otherwise.
2. The customer will bear all costs incurred by withdrawal of a product from the market or recall of individual products due to an administrative or court order itself unless we may be held culpable in this regard.
VI. Liability for Material Defects
1. Upon receipt of the goods, the customer has to examine the delivered goods immediately for defects, wrong delivery and quantity deviations, if reasonable and necessary based on the state of the art, also by processing of a sample or destructive testing.
2. We are obliged to deliver goods of average kind and quality. We expressly reserve the right to deliver goods with deviations customary in trade as well as production-related excess or short deliveries of up to 10 %.
3. The customer has to immediately notify us in writing of any apparent defects but at the latest within 5 days after receipt of the goods; otherwise and also in case of hidden defects immediately upon becoming aware of such defects. The customer has to describe the defects in detail. We reserve the right to examine faulty goods for defects before we accept the claims.
4. The warranty period is 2 years as of passing of risk. We do not grant a warranty for a minimum remaining lifetime. We do not grant any kind of guarantees.
5. If we have an obligation to supply updates for digital products, we shall comply with this obligation within legally prescribed periods; updates can be provided via our website or as a file by e-mail transmission; we are not obliged to ensure operability on operating systems for which we did not promise the product at the time of sale. Updates must also only ensure the security of operation; an improvement or expansion of the functional scope is not owed.
6. We are entitled to choose between subsequent improvement or substitute delivery for defective deliveries for which we may be held responsible at our option. If the defective goods contain components provided by the customer, it may charge us for them at its cost.
7. The customer will grant us a respite of at least 20 business days for subsequent improvement.
8. In the event that subsequent performance or substitute delivery is not possible or has ultimately failed, which may be assumed after two attempts of subsequent performance, the customer is entitled to claim reduction of the price which, in case of an ongoing business relationship, will be granted in form of a credit note, or it may withdraw from the contract regarding the specific defective goods, but not completely with regard to e.g. a master agreement or entire delivery lots or batches.
9. Further claims arising from violation of contractual or incidental contractual obligations, including but not limited to those to compensation for loss of profit, damage incurred by defect or consequential damages irrespective of the legal grounds are excluded, except in case of intent or gross negligence; Art. VII shall remain unaffected.
1.The customer will bear the product liability for goods produced by us upon request of the customer according to its instructions and in its facilities as the one responsible for the product towards third parties according to domestic or foreign law. It will bear handling and possible settlement of all claims, including necessary defence costs, asserted by third parties regarding the product and will indemnify us upon first request regarding such claims and their associated costs.
2. We are liable for intent or gross negligence according to the legal provisions and also for injuries to life, body or health. Liability for breach of duties by slight negligence is excluded, except in case of a material contractual duty. If a breach of a material contractual duty has not been caused by intent or gross negligence, our liability is limited to the foreseeable damage typical for the contract. Material contractual duties in this sense are the basic crucial obligations arising from the contractual relationship which are of particular importance for proper execution or fulfilment of the contract or have a significant effect on the trust between the parties.
3. The amount of claims for compensation of damages of the customer due to delay or impossibility of delivery is limited to 1/3 of the purchase price of the delayed or not delivered part of the delivery, except in case of intent or gross negligence.
4. Art. 474 et. seq. of the German Civil Code are not applicable if the product constitutes an intermediate product which only becomes the final product by further processing in additional work steps.
VIII. Force Majeure
The contractual parties will not be liable for non-performance or delayed performance of their duties caused by force majeure. Force majeure includes but is not limited to war, warlike activities, embargo, fire, flood, transport ban, accident, explosion, non-culpable impossibility of procurement of or lack of raw materials and substances, non-culpable lack of production possibilities, prohibition of the import or export of the contractual products, legal directives, rationing of the contractual products, strike, lockout, and other labour disputes for which we may not be held responsible and which are related to the production or the transport, likewise the non-culpable delay of delivery of raw materials which are necessary for manufacturing of the contractual products, or other circumstances beyond the control of the contractual parties.
In case of a threatening event of force majeure being imminent or having occurred, the contractual party directly affected by it will immediately inform the other party of such event, its extent and presumed duration.
IX. Industrial Property Rights
1. The observance of industrial property rights is incumbent on the customer if it has provided a trademark, design, technical solutions, know-how, or the like, or if we have manufactured the goods or the packaging for the customer according to its instructions or wishes specifically.
2. If we submit suggestions to the customer, they have not been examined for possible collisions unless we have issued a written guarantee or warranty for the intended use being possible.
3. In case of claims being asserted against us by third parties due to an alleged infringement of property rights for which the customer is liable according to the provisions in para. 1 or 2 above, it will indemnify us for all such claims at first request; this also applies to possible frustrated expenditures, e.g. for production or disposal of goods or packaging.
X. Reservation of title
1. The delivered goods remain our property until all claims towards the customer have been paid in full.
2. The customer may dispose of the goods subject to our reservation of title only in its ordinary course of business and only as long as it if fulfilling its obligations arising from the business relationship with us punctually each time.
3. The customer will assign to us all receivables incurred by resale of goods subject to our reservation of title to the extent of our share in ownership with immediate effect to secure our claims. Any processing is carried out on our behalf.
4. The customer is entitled to claim release of the securities insofar as their realisable value exceeds the receivables to be secured by 10%.
5. The customer is entitled to collect the receivables incurred by the resale as long as it properly fulfils its obligations towards us. The customer is obliged to immediately inform us in case of a seizure or another impairment of our security interest by third parties. The customer will bear any costs incurred by an intervention.
XI. Place of Performance, Place of Jurisdiction, Applicable Law
1. Place of performance for all rights and obligations arising from the contractual relationship is our company's domicile.
2. Place of jurisdiction for all disputes arising from the contractual relationship regarding business transactions with merchants, legal persons under public law, or special assets ("Sondervermögen") under public law is our company's domicile.
3. The contract is subject to German law excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
XII. Data Protection
1. We comply with the current data protection regulations, including but not limited to Regulation (EU) 216/679 of 27 April 2016 ("General Data Protection Regulation") as well as the German Federal Data Protection Act ("Bundesdatenschutzgesetz" - BDSG).
2. The customer consents to automated processing of the data of all orders, supplies and complaints. We will not use the data of the customer for other purposes than those necessary for the initiation, performance and post-processing of the contract.
XIII. Confidentiality and Advertising with the Business Relationship
1. The customer agrees to maintain confidentiality regarding the conditions of the business relationship.
2. Advertising with the business relationship is permitted only if we have consented to it previously in writing.
XIV. Severability Clause
If individual provisions of these General Terms and Conditions of Sale are or become unenforceable, the remaining conditions shall remain in full force and effect without restriction. The unenforceable provisions will be replaced by such provisions coming as close to the commercial or legal effect of the unenforceable provision as possible.
Last updated: 1 January 2022