Preface: Permanent and sustainable business relationships are based on cooperation and mutual trust, rather than terms of delivery and payment. Nevertheless, we as LOC Pharma have no choice but to provide for some items deviating from or supplementing the statutory provisions for all customer transactions in our terms of delivery and payment:
§1 General, personal data*
(1) LOC Pharma hereby expressly objects to any deviating purchasing and order conditions of the customer, also in advance for any future transactions.
(2) The customers' data are processed and used as far as legally required or necessary to maintain the business relationships. Personal data are treated according to the Federal Data Privacy Act.
§ 2 Offers, delivery and execution periods
(1) The offers of LOC Pharma are subject to confirmation. The contract shall only be concluded when we confirm the customer's order, issue invoices or deliver the ordered goods.
(2) If the customer orders any goods for which distribution or use is subject to legal or authority limitations, from us, the order shall at the same time be deemed confirmation that he has the required wholesale permit. We are obligated to view this before delivery. We shall not enter default of delivery until we receive the proof. If the customer does not provide the proof without delay, he shall enter into default of acceptance.
(3) LOC Pharma reserves the right to change its prices accordingly if there are any cost increases or reductions (in part. to the initial procurement prices) after conclusion of a contract with an agreed delivery period exceeding 5 weeks. This shall be documented upon request. If the increase is more than 5% of the agreed purchasing price, the purchaser shall be due a termination right.
§ 3 Order confirmation
(1) Orders shall be deemed accepted when we have expressly confirmed them.
(2) Confirmed prices shall apply only if the confirmed volume is purchased.
§ 4 Delivery, default of acceptance
(1) Delivery dates shall require written form and shall be subject to correct and timely delivery to us. Delivery dates shall be non-committal, however, i.e. they are approximate dates rather than fixed dates, unless expressly agreed on as fixed dates in writing.
(2) The loading site shall be the place of performance for deliveries by LOC Pharma. The risk of destruction, loss and damage to the goods shall pass to the purchaser at transfer to the first forwarder or carrier, but at the latest at departure from the storage. The delivery shall be made at the agreed location; the customer shall bear the costs for any changed instructions.
(3) LOC Pharma shall not be at fault for any delivery and performance delays due to force majeure and due to events that make delivery considerably more difficult or impossible for LOC Pharma – particularly including strike, lock-out, authority orders, operating interferences, failure of a work piece, etc. – even in case of bindingly agreed periods or deadlines. If the impairment continues for more than 5 weeks, the customer shall have the right to withdraw from the unperformed part of the contract after setting an appropriate grace period.
(5) The customer shall enter acceptance default if he does not affect the purchased and properly offered goods within the contractual period. If no period is named in the contract, the customer shall enter acceptance default if he does not collect the goods offered to him from us within 14 days if collection is agreed on. If delivery is agreed on, the customer shall enter default of acceptance if he does not accept the properly shipped goods.
§ 5 Packaging, transport damage and deficit amounts*
Packaging: The goods shall be packed in the manner common in the industry. The packaging (pallets, etc.) shall be calculated at the direct costs. Return and compensation for packaging material shall only be available according to special agreement; recyclable transport containers shall be taken back and compensated at proper return.
§ 6 Withdrawal and return
(1) If the customer withdraws from the contract before delivery and performance, damages at the amount of the verifiable costs shall be applied. Rescission of goods purchased directly upon the customer's order shall be excluded. In case of non-acceptance, LOC Pharma may make use of its statutory rights. If LOC Pharma demands damages after rescission, this shall be 25% of the agreed net price. The damage amount shall be higher or lower if LOC Pharma documents higher or the client indicates lower damage.
§ 7 Complaint about defects, warranty and liability
Complaint about defects:
(1) The warranty obligation for goods in transactions with commercial contracting partners shall be according to the general statutory provisions at delivery of defective goods. All claims of the customer due to a defect shall expire one year after delivery of the goods.
(2) We shall not be liable for any damage that did not occur on the delivered object; in particular, we shall not be liable for lost profit or other asset damage. Apart from this, our pre-contractual, contractual and out-of-contract liability shall be limited to wilful intent and gross negligence. The above limitations shall not apply to damages claims from liability for defects of material due to wilful or grossly negligent violation of the seller's obligations, as well as in culpable violation of life, body and health. The same applies to the liability of our servants. Liability under the product liability act is not affected by this.
§ 8 Payment
(1) The invoiced amounts are due 7 days after the date of the invoice unless a different agreement has been reached individually. After the end of this period, the customer shall enter default of payment.
(2) For intra-community deliveries within the meaning of § 6 a of the German VAT Act, we only dispense with indicating VAT if the customer is an entrepreneur and the delivery is made for his company. The VAT indication is only waived if the customer has reported his VAT ID from the respective member country in writing 14 days before the delivery is sent out. If the customer has named a wrong or incomplete VAT ID or the delivery has not been made for the customer's company, the customer shall be liable for the VAT not collected. This shall also apply if the VAT was not indicated for any reasons due to the customer's fault.
(3) Our customers have no right of retention unless it is based on the same contractual relationship. Set-off against counter-claims is only admissible where these are undisputed or have been finally determined.
§ 9 Reservation of title *
(1) LOC Pharma reserves title in the delivered object until compete payment of all claims, including secondary costs and interest.
(2) The purchaser is obligated to treat the purchased object with care until title has passed to him.
(3) The customer has no right to pledge the goods to any third parties or to transfer them as collateral until all claims purs. to para. 1 are met. In case of forced execution regarding the reserved goods, the customer is obligated to inform us of this without delay and to inform the third party of our reserved title without delay.
(4) In case of violation of any obligations of the customer, in particular in case of default of payment, we shall have the right to withdraw from the contract and take back the reserved goods. The reserved goods shall be returned upon the demand of LOC Pharma and at the customer's expense, or the release claims the customer has against third parties shall be assigned to us.
§ 10 Place of performance, place of jurisdiction and applicable law
(1) The place of performance for delivery of the purchased object shall be the registered office according to the purchase contract in D-78315 Radolfzell.
(2) The exclusive place of jurisdiction for any current and future claims from the business relationship with merchants shall be in D-78315 Radolfzell.
(3) If the customer has no general place of jurisdiction in the country, relocates his place of residence or domicile outside of the country after conclusion of the contract or if his place of residence or domicile is not known at the time the claim is raised, the exclusive place of jurisdiction shall be Radolfzell. LOC Pharma shall, however, have the right to call on any other relevant court.
(4) The convention of the United Nations from 11 April 1980 on contracts for the internal sale of goods (CISG) shall not apply. Any legal relationships between the parties shall be subject to German law exclusively.
Re. § 1 General information, personal data
The customer agrees that LOC Pharma submit data on commencement and termination of this business relationship to Creditreform Konstanz. LOC Pharma shall specifically have the right to report any claims, refusal of cheque and bill of exchange redemption, application of dunning notice/collection of the payment claim at undisputed claims, initiation of forced execution measures, refusal or change to the claims insurance by credit insurances. These reports must only be made under the Federal Data Privacy Act where they serve to maintain justified interests of the supplier of a contracting partner of Creditreform or the general public, and where this does not impair our protection-worthy matters. Creditreform saves data in order to inform connected participants of the creditworthiness of purchasers. It provides these data to contracting partners if these credibly present a justified interest in data submission. Creditreform only submits objective data without indication of the supplier; subjective value judgments, personal income and asset situations are not part of the Creditreform credit information. The customer may receive information on the data saved on him from the Creditreform Germany branch of Creditreform Konstanz Müller & Schrott KG, Mainaustr. 48, 78464 Konstanz, Germany.
Information is provided upon written request pursuant to §34 BDSG. The type of personal data on which information is requested must be designated in more detail.
Re. § 5 Packaging, transport damage and deficit amounts
Transport damage and deficit amounts:
(1) The customer must inspect goods delivered at once. In case of outwardly visible transport damage, the customer commits to noting these on the respective shipping documents and to having them confirmed by the carrier.
(2) The packaging must be kept. If (partial) loss or damage is not outwardly visible, the customer must report this to us within 5 days of delivery to ensure that any claims against the transport company can be asserted in time.
Re. § 9 Reservation of title (extended reservation of title)
(1) We reserve title in the delivered goods until payment of the purchasing price and payment of all purchasing price claims already existing from delivery transactions and the ancillary purchasing price claims closely connected to the delivered goods (default interest, default damage, etc.) for LOC Pharma as reserved goods. The inclusion of individual claims in a current invoice or balancing and acceptance of this shall not revoke the retention of title. If liability of the seller for a bill of exchange is founded in connection with payment of the purchase price by the purchaser, the reservation of title shall not expire before the bill of exchange has been redeemed by the purchaser as the drawn-on party. In case of default of payment by the purchaser, the seller shall have the right to take back the reserved goods after dunning and the purchaser shall be obligated to release them.
(2) If reserved goods are processed into a new object by the purchaser, processing shall take place for the seller, without the seller incurring any obligations from this; the new object shall become the seller's property. In case of processing together with goods that do not belong to the seller, the seller shall acquire shared title in the new object at the ratio of the value of the reserved goods to that of the other goods at the time of processing. If the reserved goods are combined, mixed or blended with any goods that do not belong to the seller pursuant to §§ 947, 948 German Civil Code, the seller shall become the co-owner according to the statutory provisions. If the purchaser acquires sole title by combination, mixing or blending, he hereby assigns shared title to the seller at the ratio of the value of the reserved goods to the other goods at the time of combination, mixing or blending. In such cases, the purchaser shall keep the object owned or co-owned by the seller, which is also deemed reserved goods in the meaning of the following provisions, free of charge.
(3) If any reserved goods are sold by the purchaser, alone or together with any goods that do not belong to the seller, the purchaser hereby assigns the claims resulting from the further sale at the value of the reserved goods with all ancillary rights; the seller accepts the assignment. The value of the reserved goods shall be the amount invoiced by the seller, plus a collateral surcharge of 38% (10% value deduction, 4% § 171 1 InsO, 5% § 171 II InsO and VAT at currently 19% at the respective statutory amount), which shall, however, not be applied where any third-party rights are opposing this. If the reserved goods that are sold on are subject to the seller's shared title, the assignment of claims shall cover the amount that corresponds to the share value of the seller in the shared title. Para. 1 sentence 2 shall apply accordingly to the extended reservation title; the advance assignment pursuant to para. 3 sentences 1 and 3, shall cover the balance claim as well.
(4) The purchaser shall have the right and authorisation to sell on, use or install the reserved goods only in his common, proper course of business and only with the proviso that the claims within the meaning of para. 3, 4 and 5 actually pass to the seller. The purchaser shall not have the right to make any other disposals of the reserved goods, in particular regarding pledging or provision as collateral.
(5) The seller authorises the purchaser, subject to revocation, to collect the claims assigned according to para. 3, 4 and 5. The seller shall not make use of the collection authorisation, while the purchaser meets his payment obligations, also towards third parties. Upon request of the seller, the purchaser shall designate the debtors of the assigned claims and also report the assignment to them; the seller shall be entitled to report the assignment to the debtors directly as well.
(6) The purchaser must inform the seller of any forced execution measures by third parties regarding the reserved goods or the assigned claims without delay and including any documents required for objection.
(7) At cessation of payment, application for or opening of insolvency proceedings or a settlement procedure in or out of court, the right to sell on, use or install the reserved goods and the authorisation to collect the assigned claims shall lapse: In case of a cheque or bill protest, the collection authorisation shall lapse as well.
(8) If the value that can be realised from the collateral granted exceeds the claims to be secured from deliveries by more than 38% (10% value deduction, 4% § 171 1 InsO, 5% § 171 II InsO and VAT at currently 19% at the respective statutory amount), the seller is obligated to return or release in this respect. The value that can be realised shall be based on the purchasing prices of the purchaser or, at processing of the reserved goods, the production costs of the collateral or the share in its title, minus an admissible evaluation deduction of up to 38% for the claims to be secured (10% value deduction, 4% § 171 1 InsO, 5% § 171 II InsO and VAT at currently 19% at the respective statutory amount) for possibly reduced yield, unless the seller documents a lower realisable value of the reserved goods. At repayment of all claims of the seller from deliveries, title in the reserved goods and the assigned claims shall pass to the purchaser.