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General Terms and Conditions of Business

General Terms and Conditions of Business of ilapo Internationale Ludwigs-Arzneimittel GmbH & Co. KG

1. Scope of application, diverging general terms and conditions, future transactions, overriding agreements

1.1 The General Terms and Conditions of Business set out below (GTC) apply to all our sales to customers (Purchaser(s)), if Purchaser is a business within the meaning of Section 14 German Civil Code (BGB).

1.2 The GTC apply exclusively. Purchaser may view the current version, as amended from time to time, on the internet at at any time. Any Purchaser general terms and conditions of business conflicting with or diverging from these GTC  hall not be accepted unless we have expressly agreed to them in the particular case. In the case of continuous business relations these  GTC also apply to all future business transactions between Purchaser and us.

1.3 Where a Quality Technical Agreement (QTA) is in place with Purchaser, the provisions of such agreement shall prevail over these GTC. Any individually negotiated agreements with Purchaser  including side agreements, amendments and changes) as well as any terms in our offers and order confirmations conflicting with these GTC shall also take precedence over these GTC.

2. Offers, prices

2.1 Our offers remain subject to change unless they have been expressly and in writing defined or agreed upon as binding.

2.2 Unless otherwise agreed all prices are deemed net prices FCA (Incoterms® 2020) plus packaging, costs of transportation/shipping and other logistics costs, and plus statutory value-added tax as applicable at the time of invoicing.

3. Delivery dates/deadlines, self-supplies, delay in delivery, force majeure, export control

3.1 All delivery dates/deadlines are deemed nonbinding except where expressly defined or agreed upon as binding.

3.2 In the event that we have not received at all or in due time supply of any goods ordered, we shall not be in default with the delivery to Purchaser unless we are responsible for having received such supply with delay or not at all. We are entitled to withdraw from the contract if it is established that we are not responsible for not having received supply of the goods ordered.

3.3 In the event of intent or gross negligence on our part, Purchaser may claim, apart from delivery, compensation for any damage caused by a delay in delivery. Subject to section 9.3, our liability in the case of slight negligence is limited to damage foreseeable at the time of conclusion of the contract and characteristic for the contract, but to a maximum of 10% of the agreed purchase price of the goods we are in default with.

3.4 In any event of force majeure or other unforeseen circumstances, such as disruption of business operations, lawful strike or employee lockout, import/export restrictions, official orders, epidemics, pandemics, etc., which temporarily prevent us, through no fault of our own or attributable to us, from delivering the goods by the date or within the time agreed, these delivery dates/times will be postponed and extended – including during the delay - by the duration of the interference caused by such circumstances. If performance is delayed by more than 4 months as a result of such interference, both parties may withdraw from the contract. If the delivery or part thereof becomes impossible or unacceptable as a result of these circumstances, we will to that extent be released of the obligation to make delivery and/or have the right to withdraw from the contract. Nothing in this shall prejudice the terms of section 3.5 below as well as any statutory rights of withdrawal of either party as may exist.

3.5 If the goods are intended to be placed on the market outside of Germany, the contract is concluded on the condition that the delivery does not conflict with any export control or other trade measures.

4. Delivery, shipping, passing of risk

Deliveries are effected FCA (Incoterms®2020) at our domicile at D-80639 Munich, Friedenheimer Brücke 21, on the condition that delivery will be effected and the risk of accidental loss and accidental deterioration of the goods will pass to Purchaser as soon as the goods are transferred to the forwarding agent or carrier or other transport person; if dispatch is delayed for any reasons beyond our control, the risk shall pass to Purchaser upon receipt of the notice that the goods are ready for dispatch. The same applies if, at the Purchaser’s request, we handle the shipping directly with the transport service provider designated by Purchaser, using the customer number provided to us by Purchaser for this purpose.

5. Payment, right of retention/setoff

5.1 Unless agreed otherwise our invoices fall due within 14 days after delivery and the invoice date.

5.2 Purchaser may assert a right of retention against our claims only if it is based on claims from the same contractual relationship that are uncontested, ready for a decision or defined by final enforceable judgment. Any setoff is excluded except where the counterclaim is defined by final enforceable judgment, ready for a decision or uncontested.

6. Reservation of title

6.1 All goods delivered by us remain our property under reservation of title (“Goods”) until all claims under the contract and any other claims we may subsequently acquire against Purchaser in direct relation to the goods delivered, on whichever legal grounds, have been settled. This also applies where payments are made towards specially designated claims.

6.2 Furthermore, the Goods remain our property until all our other presently existing and future claims under the business relationship (including all unsettled balances based on current account) have been settled. In the event of a current account, the Goods serve to secure our unsettled balances.

6.3 Purchaser may resell the Goods in the regular course of business. Where Purchaser is required to make payment in advance, Purchaser may only resell the Goods under a reservation of title. Purchaser will have no
right to resell the Goods where Purchaser is in default with payment or has suspended payment not only temporarily. As long as the Goods remain our property we may revoke Purchaser’s right to resell the Goods for a legitimate reason. Purchaser herewith agrees to assign to us, by way of security, all claims arising for Purchaser out of any resale or other legal grounds in respect of the Goods, including all ancillary rights, and we accept such assignment.

6.4 Purchaser is authorised to collect the assigned claims until such right is revoked. Purchaser is not authorised to dispose of the claims in any other manner, such as by assigning or pledging them. We may revoke Purchaser’s right to collect the claims for a legitimate reason. Nothing in this shall prejudice our right to ourselves collect the claims. However we agree not to collect the claims as long as Purchaser complies with the payment obligations owed to us.

6.5 Where we are authorised to directly collect the claims, for instance if Purchaser has failed to meet his payment obligations, Purchaser will be required to notify his customers of the assignment upon request. Furthermore, in any such case Purchaser must provide us with a list indicating all Goods that are our property, the assigned claims, the debtors’ names and addresses, and the amount of each claim. We may notify the debtors of the assignment.

6.6 Purchaser is obliged to treat the Goods with care and to adequately insure them against fire, property damage and theft for the duration of the reservation of title. On request, Purchaser will submit the insurance policy to us for viewing. Purchaser herewith assigns to us any claims relating to our property or co-owned property Purchaser will be entitled to against his insurance company in the event of any insurance claim, and we accept the assignment. We shall reassign such claims to Purchaser at the condition that the reassignment will not be effective unless and until the reservation of title has expired as all our claims have been fully paid.

6.7 As long as the reservation of title remains in effect, any pledging, assignment for security purposes, letting or other assignment or change of the Goods that adversely affects our claims, will be subject to our prior written consent. Nothing in this shall prejudice Purchaser’s right to resell the Goods in the ordinary course of business, subject to the conditions above, or to process them in accordance with section 6.9 below. In the event of any third party intervention, such as judicial execution, Purchaser will advise the third party of our reservation of title and notify us without delay in writing.

6.8 If Purchaser suspends payment not only temporarily or moves for the opening of insolvency proceedings on Purchaser’s assets, or if insolvency proceedings are opened on Purchaser’s assets, Purchaser will be required, on our request, to release the Goods that are our property. If Purchaser acts in breach of the contract, especially if he is in default with payment, we will have the right to require Purchaser to release the Goods.

6.9 Any processing or transformation of the Goods will be undertaken on our behalf such that we are deemed the manufacturer under Section 950 BGB. If the Goods are processed by Purchaser, including combined or mixed with other goods that are not our property, we will be entitled to joint ownership of the new product at the proportion of the invoice value of the Goods relative to the invoice value of the other goods, at the time of processing. We herewith offer to grant Purchaser an expectant right in the arising co-ownership share, and Purchaser accepts this offer. If the Goods are sold together with other goods after processing, the assignment of claims arising out of the resale is limited to the invoice value of the goods delivered by us.

6.10 On Purchaser’s request and at our choice, we will be required to waive the reservation of title and/or to release security collateral provided by assignments for security purposes or advance assignments once Purchaser has fulfilled all claims relating to the Goods or if the realisable value of all security collateral provided by us by way of reservation of title, assignment for security purposes and advance assignment exceeds the total sum of claims against Purchaser by more than 15%.

7. Notification of defects, warranty

7.1 Purchaser’s rights in the event of defective goods are governed by the applicable laws as amended by the provisions of this section 7.

7.2 All obvious defects must be reported to us in writing without delay but at the latest 8 days after receipt of the goods. All hidden defects must be reported to us in writing without delay but at the latest 8 days after their discovery. If no defects are notified, the delivery will be deemed defect-free and approved.

7.3 To the exception of claims for damages based on defects, claims based on defects become time-barred 12 months after delivery of the goods.

7.4 Sections 7.2 and 7.3 of these GTC will not apply where we have fraudulently concealed a defect or where a defect is covered by a guarantee as to quality.

7.5 Purchaser is only entitled to claims for damages based on defects to the extent that our liability is not excluded or limited pursuant to section 9 of these GTC. Any rights or remedies further or other than those provided in this section 7 for non-conformity shall be excluded.

8. Return of goods

It is excluded for legal reasons to return defect-free goods. Any goods returned will be destroyed upon notification with no refund. On request, we will issue a confirmation of destruction. We are not obliged to preserve and return any such goods.

9. Liability, limitation of liability

9.1 We accept unlimited liability for damage caused by intent and gross negligence.

9.2 In the event of a slightly negligent breach of a major obligation or of an accessory obligation whose breach puts the achievement of the contractual purpose at risk, or whose fulfillment is essential for the due and proper implementation of the contract, and whose fulfillment Purchaser could reasonably rely on (“essential accessory obligation”), our liability is limited to damage foreseeable at the time of conclusion of the contract and characteristic for the contract, but to a maximum of EUR 1,000,000 for property damage and EUR 100,000 for pecuniary losses. We are not liable for slightly negligent breaches of accessory obligations which are not part of the essential accessory obligations.

9.3 Nothing in this shall affect the liability in the event of fraudulent concealment of defects or assumption of a warranty as to quality, nor the liability for claims based on the Product Liability Act / Drug Act or for injuries to life, limb or health. This provision does not result in a reversal of the burden of proof to Purchaser’s disadvantage.

9.4 To the exception of claims based on tort, Purchaser’s claims for damages for which our liability is limited under this section 9 become time-barred one year after the beginning of the statutory limitation period.

10. Minimum order values, rush charges

Our deliveries are not subject to any minimum order values or rush charges.

11. Marketing the goods outside of Germany, Purchaser’s liability

11.1 If the goods shall be placed on the market outside of Germany, Purchaser will be the person responsible for placing the goods on the market in the country of destination and accepts all legal obligations relating thereto. In particular, Purchaser undertakes to observe the marketing regulations applicable in the country of destination, including the provisions of drug law. We do not accept any obligations in this context but shall seek to support Purchaser in obtaining the necessary official permits, if any, etc.

11.2 If Purchaser culpably breaches his obligations under section 11.1 he will be obliged to compensate the damage incurred by us due to such breach.

12. Place of performance, governing law, place of jurisdiction, arbitration

12.1 Our domicile shall be the place of performance for all payment and delivery obligations provided that Purchaser is a merchant.

12.2 All contracts shall be governed exclusively by German law with the exclusion of the UN Sales Convention (CISG).

12.3 If Purchaser is a merchant or legal person under public law, or if Purchaser is not domiciled in Germany, the exclusive place of jurisdiction for any and all disputes arising out of or in connection with the contract entered into between us and Purchaser shall be our domicile. However, we are also entitled to sue Purchaser at any other legal place of jurisdiction or – instead of filing a lawsuit with an ordinary court of law – to initiate arbitration proceedings in accordance with section 12.4 below.

12.4 In the event of an arbitration proceeding all disputes will be decided with final effect under the Arbitration Rules of the German Institution of Arbitration (Deutsche Institution für Schiedsgerichtsbarkeit e.V. - DIS) while recourse to the ordinary courts of law is excluded. The forum of arbitration will be our domicile. The arbitration panel will be composed of three arbitrators if the value in dispute exceeds EUR 100,000, and of one arbitrator in all other cases. The language of arbitration proceedings will be German. 

Status: June 2020