Terms and Conditions
1. ACCEPTANCE OF ORDERS SCOPE OF THESE TERMS AND CONDITIONS
All orders of products should be initiated by textual purchase orders to Pharmact GmbH (“Pharmact”) . Orders are only binding for Pharmact, when Pharmact has accepted them in text form or written form, or verbal orders are confirmed by written confirmation, These conditions shall apply exclusively to the sale and delivery of products by Pharmact. Modifications or additions to these terms and conditions will only be binding when they are authorised at least in text form by Pharmact. These terms and conditions will prevail over any purchase or other conditions of Buyer. This applies also when these conditions make other sale or delivery conditions invalid.
2. PRICES AND TAXES
Prices are to be understood in addition to the statutory sales tax, on the day the invoice is issued, customs duties and tariffs and all other national, state, and local taxes, fees or charges now in force or enacted in the future. Any such tax, fee or charge imposed by any governmental authority on the transaction between Pharmact and Buyer will be paid by Buyer in addition to the prices quoted or invoiced. lf Pharmact is required to pay any tax, fee or charge at the time of sale or thereafter that is not related to the order, the Buyer will reimburse this to Pharmact.
Delivery of products will be made at the DDU point (Delivery Duty Unpaid Incoterms 2000), i.e. the “Ship To» address indicated on the purchase order, at which time risk of loss shall pass to the Buyer. Product will be shipped to the DDU point via transport company at Pharmact’s sole option. Any freight and insurance charges (if applicable) will be paid by Pharmact, with exception of the customs formalities, payment of customs duties and any other charge for import in the country of destination, which will be paid by the Buyer. Partial deliveries are permitted, to the extent that this is agreed to by the Buyer and the appropriate balance of interests between the parties is not significantly damaged. In particular the right to partial deliveries does not rest on the right of the Buyer under § 320 BGB (Bürgerliches Gesetzbuch [German Civil Code]) and §323 BGB. Delivery dates or deadlines have to be in writing. No additional costs for postage and packaging accrue to the Buyer as a result of partial deliveries.
4. TERMS OF PAYMENT
Payment should either be made within fourteen (14) days with a discount of 2% for prompt payment or within thirty (30) days net following the invoice date unless otherwise stated. The right to discount depends on money arriving in the account of Pharmact. Payment shall be made to Pharmact at the address on the enclosed invoice or such other address as Pharmact may specify. Starting with the 31st day after the due date contained in the bill, if payment has not been made, legal imposition of interest on arrears begins and the customer is responsible for any additional arrears caused.
5. RETENTION OF TITLE
The delivered goods remain the property of the seller until full payment has been made. If the property of the seller is deprived the merchandise for which title is retained because of an obligation, mixing or processing, the Buyer concedes to the Seller the status of the Producer, who according to §§947, 948, 950 BGB acquires ownership of the new merchandise or a part ownership of the corresponding to the value of the merchandise (the billing amount) of the produced good. The customer watches over the property of the seller for free. With seizure, confiscation or other disposal or interventions of third parties in property of the seller in the possession of the customer, the customer has to tell the seller immediately in text form and where there is a risk of delay by telephone. All legal and extra-legal costs for closing off access or repurchasing the delivered merchandise that have to be spent are at the cost of the customer. There remains the possibility for the customer to prove that less damage resulted.
6. PROPRIETARY RIGHTS
Pharmact retains all proprietary rights in and to all intellectual property. This applies especially in relation to the details of development and construction as well as other data pertaining to all products sold hereunder, except to the extent rights are expressly granted under a separate written agreement signed by a corporate officer of Pharmact or rights are transferred by the operation of law. Each product sold under these terms and conditions is for single use only, any and all use, repair, refurbishment, replenishment or reconditioning of such products by anyone other than Pharmact is expressly prohibited.
Pharmact warrants that, at the time of shipment, the Pharmact products (i) shall conform to their specifications as published by Pharmact, applicable at the time the order is placed and accepted, and (ii) shall be free of defects in materials and workmanship, and (iii) shall be manufactured in accordance with the applicable manufacturing standards. This warranty shall apply for a single use with one patient. Pharmact may, should it wish, repair or replace any products which do not meet the preceding warranty, or refund the product purchase price.
The warranty rights of the Buyer provide that the buyer inspects the products immediately upon delivery and informs Pharmact in writing immediately, nevertheless one week after delivery at the latest, of any defects, while concealed defects are to be reported to Pharmact in writing immediately after they are revealed. Warranty shall not apply (i) to products or spare parts that have been modified, altered or combined with other devices in any manner by anyone other than Pharmact, or (ii) to defects caused (a) by the use or operation in an application or environment other than that intended or recommended by Pharmact; (b) by service by anyone other than employees of, or persons approved in writing by Pharmact; or (c) by accident, negligence, misuse, or other causes other than normal use, (iii) in addition, the warranty does not apply in the event that the buyer (or user of the products) infringes one of his obligations in accordance with Sections 1-4 of the German Medizinprodukteverordnung (Ordinances on Medical Devices). Replacement products and parts supplied under this warranty shall carry only the unexpired portion of the original warranty.
The statute of limitations on claims arising from defects is a total of twelve months from the delivery of the product to the buyer.
The statutory limitation periods remain for those claims to damages of the buyer that cannot be attributed to defects in the products and with regards to any rights of the buyer due to maliciously concealed defects that can that be attributed to wilful misconduct.
8. LIABILITY AND DAMAGES
The statutory liability of Pharmact for damages is restricted as follows: (i) for damage that can be attributed to a normal negligent breach of a fundamental contractual obligation, Pharmact is liable only to the extent that the damage was ordinarily foreseeable at the time of the formation of the contract, (ii) Pharmact is not liable for damage that is attributable to a normal negligent breach against a non-essential contract obligation, and (iii) under no circumstances, shall Pharmact be liable for the cost of procurement of substitute products by the customer or for any unforeseeable damages or any expenses incurred by the Buyer, including without limitation, expenses for the inspection of the products, even if Pharmact was informed of the possibility of such damages arising. The above mentioned limitation of liability applies neither in cases of compulsory legal liability (particularly in relation to liability within the scope of product liability law), nor to liability arising from the acquisition of a particular guarantee or liability for culpable injury. The buyer is obliged to do everything possible within reason to avoid damage and keep damage as low as possible.
9. INTERNATIONAL SALES PROVISIONS
The Buyer will obtain and maintain all consents, approvals, authorizations, designations, and filings, including those for currency controls, which may be required in any country in which Buyer receives the products.
The buyer is obliged to inform Pharmact of all clinical incidents that are connected with the use of Pharmact products, for which the buyer is obliged to inform the responsible authorities in accordance with Section 2, No. 1, 3, (2) (4) of the German Medizinprodukte-Sicherheitsplanverordnung (Medical Products Safety Plan Ordinance).
10. APPLICABLE LAW AND COMPETENT COURTS
The sales of products shall be governed by and construed with the laws of Germany. Sales of products shall not be governed by the 1980 U.N. Convention on Contracts for the International Sales of Goods. The sole place of jurisdiction is Mannheim. Pharmact is, nevertheless entitled to make a claim against the Buyer in any other legally allowable jurisdiction.
The Buyer agrees to keep confidential the terms and conditions of the purchase order, including but not limited to, the identity of the items, prices and quantity that may be recited herein.