General Business Terms and Conditions

General Terms and Conditions for Sales and Delivery

 

I. Scope of application 

These GTC apply exclusively to all sales and deliveries of Bela-Pharm GmbH & Co.KG (hereinafter “seller”) with companies, legal entities and special estates under public law who are acting in accordance with their commercial or self-employed professional activities when concluding a contract. The purchaser of Bela-Pharm products in terms of these GTC will hereinafter be referred to as the “purchaser”. Alternative, contrary or deviating conditions and/or general terms and conditions or other restrictions of the purchaser are not accepted. Neither will they become a part of the contract if reference is made to these in an order, unless the seller has expressly agreed to application of these in writing. The GTC shall also apply to any future transactions with purchaser, provided that these are of the same legal nature. 

 

II. Offer and conclusion of contract 

1. The offers of the seller are non-obligatory and non-binding. The contract is only concluded when accepted by the seller (order confirmation or delivery). The seller reserves the right to specify minimum order amounts as a condition for concluding a contract.

 

III. Prices and payments 

1. Applicable are the sales price at the time of delivery plus applicable statutory value added tax.

2. The prices specified by the seller are net prices ex works plus statutory value added tax. The seller reserves selection of the most economic shipping method. If the purchaser requests a specific shipping method, such express or urgent delivery, express courier, air freight, refrigerated transport etc. from us, we will invoice the additional costs plus statutory VAT. 

3. The seller will ship in return for cash on delivery or on account, invoice payable within 8 days of receipt of the goods without deductions. All payments are only considered as having been made once the seller has access to the paid amount. If the purchaser fails to pay when the price is due, annual interest at the statutory rate above the base rate is payable on the outstanding amounts from the day after the due day. No separate warning has to be sent. The seller reserves the right to claim higher interest rates and additional damage compensation in case of default. If the purchaser is in default, the seller is not obliged to perform any further services. 

The seller reserves the right to send a paperless invoice to the purchaser. The purchaser is obliged to communicate the details necessary for this purpose to the seller. On request of the purchaser, a paper invoice can be sent. The seller will invoice the resulting additional costs of the seller of EUR 2.00 plus VAT to the purchaser.

4. The purchaser may not exercise any rights of retention and may not demand set-off against any compensation claims other than claims based on defects of the delivered items, unless the claim is undisputed or determined by a court or is based on the same contract. 

5. In the event of doubts concerning the purchaser’s ability to pay, the seller may demand advance payments or collaterals and may cancel any payment targets that were granted. 

 

IV. Quality of the goods, technical advice, use and processing 

1. The quality of the goods is generally only specified in the seller’s description thereof in the product descriptions, specifications, and labels. Public comments, endorsements or advertisements do not constitute a description of the quality of the purchased item. 

2. Any verbal, written or practical support of the seller regarding the use of the product is provided to the best of the seller’s knowledge but shall only be a non-binding recommendation, also in regard to any third-party property rights, and does not exempt the purchaser from conducting their own checks as to whether the supplied products are suitable for the intended processes and purposes. Application, use and processing of the products take place outside the sphere of control of the seller and therefore are the exclusive responsibility of the purchaser. 

 

V. Delivery and transfer of risk

1. The products are shipped ex work (EXW, in accordance with INCOTERMS 2020) unless agreed otherwise.

2. If delivery was agreed, the goods are delivered at the risk of the purchaser. The purchaser is free to arrange for transport insurance.

3. The seller has the right to provide partial deliveries. If the seller provides a partial delivery they have decided on, the seller shall bear any resulting additional shipping costs.

4. By dispatching the order to the purchaser or by handing it over to the transport company, the risk of accidental loss or deterioration of the products is transferred to the purchaser. The risk is transferred upon notification of readiness for dispatch by the seller already if shipping cannot be delayed for reasons attributable to the sphere of influence of the purchaser. Any additional costs of extended storage after the risk was transferred shall be borne by the purchaser.

5. The place of performance is the place of business of the seller.

6. Any delivery dates specified by the seller are generally non-binding, unless they were confirmed as “binding” by the seller in writing. If a binding delivery date was agreed, the delivery is shipped on time if dispatched on the agreed date.

7. The precondition for compliance with any agreed delivery periods is the timely and due compliance with the obligations of the purchaser. This especially includes the submission of necessary documents (such as permits) and, if an advance payment was agreed, receipt of this payment by the seller.

8. The delivery is subject to the condition that the seller receives the correct self-delivery in time. If the seller does not receive the delivery in time, despite having concluded a hedging transaction and without being responsible for the non-delivery, the seller has the right to withdraw from the contract. In case of a belated or incorrect delivery, the seller agrees to notify the purchaser immediately of the non-availability of the product and, if necessary, to reimburse any counter performance the purchaser has made until that point without delay.

If the delivery date is not complied with for reasons the seller is responsible for, the purchaser has to set an appropriate grace period for the seller in writing, which should not be shorter than four weeks. This does not apply if no grace period has to be set in exceptional cases.

9. If the purchaser delays acceptance or fails to cooperate, the risk of accidental loss or deterioration of the goods will be transferred to the purchaser at the time such delay occurs. The seller has the right to demand reimbursement for any damage so caused, plus reimbursement for any additional costs incurred. 

 

VI. Force majeure/obstacles for delivery

Force majeure of any kind; unforeseen interruptions to operations, traffic or shipping; fire damage; flooding; unforeseeable shortages of labour, energy, raw materials or auxiliaries; industrial action; lockouts; public orders; existing or arising pandemics/epidemics or other obstacles the party obliged to provide a service is not responsible for and that delay or prevent the manufacture, shipping or acceptance or use or which render any such unreasonable shall release that party from the delivery or acceptance obligations for the time and to the extent of the interruption. This also applies if any of the aforementioned events occur at a sub-supplier/supplier. If the disruption causes the delivery and/or acceptance to be delayed by more than eight weeks, both parties may withdraw from the contract. If the sources of the seller become partially or fully unavailable, the seller is not required to purchase from other suppliers instead. In this event, the seller has the right to distribute the available stock under consideration of the seller’s own needs. 

 

VII. Data retention 

Notice pursuant to Art. 13 GDPR: When arranging and concluding the contract, the seller collects personal data from the purchaser. These data will be used to negotiate and execute the contract. For further information, please see the privacy policy under www.bela-pharm.com

 

VIII. Warranty, material defects 

1. Claims of the purchaser based on material defects require the purchaser to have complied with their obligation to immediately check the product and report defects pursuant to section 377 German Commercial Code (HGB). The purchaser has to report obvious defects to the seller in writing within 8 days of having received the products. Timeliness is proven via the post stamp on the complaint letter.

2. The seller does not accept liability for a reduced quality or efficacy of a product beyond the limits permitted by law if the purchaser does not store the products correctly or if the purchaser stores them for longer than indicated by the shelf life limit.

3. If a defect is reported in time which reduces or restricts the value or usability of the product to a not only minor degree, the seller may initially, at their choice, select supplementary performance in the form of either replacement delivery or subsequent improvement of the products that were delivered.

4. If subsequent improvement is unsuccessful or if the seller refuses such, the purchaser may reduce the purchase price or may withdraw from the individual contract in question. The right to demand compensation for damages remains reserved.

5. Claims based on material defects become time-barred one year after delivery or the products, provided that the delivery of defective products does not constitute a deliberate violation of duty.

6. No warranty provisions apply if the purchaser, without the permission of the seller, modifies the goods or has them modified by third parties. 

7. The purchaser is obliged to report any recourse claims occurring in the supply chain to the seller immediately after these became known to the purchaser. 

 

IX. Liability 

1. The seller is only liable in accordance with legal provisions and for damage caused by intentional or grossly negligent actions of the seller or their vicarious agents. This does not apply to the violation of essential contractual duties. In the event of a violation of essential contractual duties, liability is limited to the damage typical for the type of contract in question that was foreseeable at the time the contract was concluded or, at the latest, when the violation of duty occurred.

2. Claims for damage compensation under Product Liability Law, the Medicinal Products Act and claims resulting from injury to life, limb or health remain unaffected.

3. The liability of the seller for minor negligence is limited to a compensation for material damage and any resulting subsequent financial losses up to an amount of EUR 100,000.00 per damage event, even in case of a violation of essential contractual duties. Furthermore, a liability for indirect damage and subsequent damage is excluded in cases of minor negligence.

4. The seller is not liable for damage caused by improper treatment or use of the supplied products.

5. Insofar as the seller provides technical information or advice, and if such information is not part of the contractually agreed performance that the seller owes, such information and advice is provided free of charge and under exclusion of any liability.

 

X. Retention of title 

1. The purchaser has the right to resell the products that are subject to retention of title in the course of normal business operations, this permission may be revoked. Already when concluding this contract, the purchaser assigns to the seller the purchaser’s claims arising from such resale of the products that are subject to retention of title to the amount of the invoice amount agreed with the seller, including value added tax. The seller hereby accepts the assignments. The purchaser remains entitled to collect the claims, also after assigning these to the seller. This does not affect the right of the seller to collect the claims themselves. The seller agrees, provided that the purchaser complies with its payment obligations and, especially, for as long as no request to open insolvency proceedings is filed, to not report the assignment of the claim the third-party debtor and to not collect the claims.

2. The processing or transformation of the products that are subject to retention of title by the purchaser is always done on behalf of the seller. If the products that are subject to retention of title are processed together with other items not owned by the seller, the seller shall, as a result of such processing or transformation, acquire ownership of the new items in proportion of the value of the products that are subject to retention of title compared to the other processed items at the time of processing or transformation. In addition to the above, the items created through processing or transformation are subject to the same provisions as the products that are subject to retention of title.

3. If the products that are subject to retention of title are inseparably combined or mixed with other items not owned by the seller, the seller shall acquire ownership of the new items in proportion of the value of the products that are subject to retention of title compared to the other combined or mixed items at the time of combination or mixing. If the main component of the compound or mixture is an item that is owned by the purchaser, it is agreed that the purchaser will transfer proportional co-ownership rights to the seller. The purchaser safeguards the sole or co-ownership rights of the seller on behalf of the seller.

4. On demand of the purchaser, the seller will release the collaterals they are entitled to insofar as the value of the collaterals exceeds the value of the secured and unpaid claims by more than 10%.

 

XI. Resale

The goods/products and technical know-how supplied by the seller may only be sold, supplied or used in the country of delivery/destination country. The seller does not guarantee that any resale of the goods/products into other countries does not violate any of the legal regulations applicable in such third country. Furthermore, the seller does not guarantee that no industrial property rights of third parties will be violated in such third countries. 

Any re-export - individually or when integrated into systems - may require permits under the export regulations of the Federal Republic of Germany. The purchaser is the only party responsible for compliance with all applicable regulations and for obtaining permits. Furthermore, the seller does not guarantee that no industrial property rights of third parties will be violated in such third countries.

 

XII. Applicable law, place of jurisdiction, compliance 

1. The contractual relationship is exclusively governed by the laws of the Federal Republic of Germany under exclusion of the CISG provisions.

2. If the purchaser has his business address or domicile within the European Union or the European Economic Area at the time the order is placed, the place of jurisdiction for any and all disputes between the parties is 49377 Vechta, Germany. This also applies if the purchaser does not have a general place of jurisdiction in Germany or if their domicile or habitual residence is unknown at the time action is brought. The seller has the right to bring action at the place of jurisdiction of the purchaser. 

If the purchaser has his business address or domicile outside the European Union or the European Economic Area at the time the order is placed, all disputes shall be bindingly resolved in accordance with the arbitration rules of the German Arbitration Institute (DIS) under exclusion of ordinary legal proceedings. The arbitration board consists of three arbitrators. The place of arbitration is Hamburg, Germany. The language of the proceedings shall be English. Applicable law in the matter is German law under exclusion of the CISG provisions. The arbitration court may not publish the result of the arbitration proceedings.

3. In addition to these GTC, the purchaser has to comply with any and all applicable local, national, and international laws, regulations and industrial codes addressing public procurement, conflicts of interest, corruption or bribery, and the purchaser will continue to do so in the future, including all laws passed in implementation on the OECD agreement on combating corruption.

 

XIII. Final provisions 

 

If individual provisions of the contact concluded with the purchaser, including these General Terms and Conditions, are or become fully or partially void, this shall not affect the validity of the remaining provisions. The fully or partially void regulation shall be replaced by that regulation that comes as close as possible to the economic goal pursued with the void regulation. Under no circumstances shall the provision of these General Terms and Conditions in question be replaced by the general terms and conditions of the purchaser.

 

Stand: June 1st, 2020

General terms and conditions (GTCs) for services and works

 

I. Scope of application 

These GTCs apply exclusively to any services provided by Bela-Pharm GmbH & Co.KG (hereinafter the “service provider”) in form of services or work for companies, legal entities and special estates under public law who are acting in accordance with their commercial or self-employed professional activities when concluding a contract. The customer of Bela-Pharm GmbH & Co. KG in terms of these GTCs will hereinafter be referred to as the “customer”. Alternative, contrary or deviating conditions and/or general terms and conditions or other restrictions of the customer are not accepted. Neither will they become a part of the contract if reference is made to these in a written document, unless the service provider has expressly agreed to application of these in writing. The GTCs shall also apply to any future transactions with customer, provided that these are of the same legal nature. 

 

II. Contractual object, right of use 

1. The service provider provides his services exclusively based on the contract concluded with the customer and based on these GTCs. The service that is to be provided is described in detail in the contract. The service provider agrees to provide the service owed in accordance with the principles of proper professional conduct.

2. With payment of the agreed remuneration in full, the customer acquires an in regard to geographical scope and time unrestricted right to use the service provided by the service provider for internal use as compatible with the contractually agreed purpose.

 

III. Employees, subcontractors, right to issue instructions, hour sheet

1. The employees for providing the service are selected by the service provider. The customer is only entitled to have the service provided by a specific employee of the service provider if this was expressly agreed in the contract. Naming a project manager or a contact partner in the written offer of the service provider does not meet that requirement.

2. The service provider has the right to commission subcontractors to provide the agreed service.

3. The customer has no right to issue instructions to the employees and subcontractors employed by the service provider.

 

IV. Cooperation obligations of the customer 

1. The customer will submit all documents and items required for providing the service owed to the service provider in good time, will provide the service provider with all necessary information and will notify the service provider of all factual matters associated with the order. This also applies to documents and factual matters that only become known while the service provider is already providing the service.

2. The service provider may demand the customer to confirm accuracy and completeness of the documents submitted by him (the customer) as well as of his information and verbal declarations in writing.

3. Where required for providing the service owed, the customer will grant the service provider and the service provider’s subcontractors access to the customer’s premises and service rooms and will make the necessary technical infrastructure available free of charge.

4. If the customer violates a cooperation obligation, the customer shall be liable for any consequences such as additional expenditure or delays and shall reimburse the service provider for any resulting damage. During such periods, the service provider is exempt from the obligations under the contract and these GTCs.

 

V. Confidentiality

1. The service provider and the customer will only utilise any personal or subject-related information of the respective other, company secrets or other business matters that they become aware of while the service is provided to the customer in accordance with the contract concluded with the customer. Both the service provider and the customer require the prior permission of the customer or the service provider respectively to pass such information on or to disclose it. The service provider and the customer also agree to keep such information confidential beyond the end of the contract for as long as no written permission to disclose the information was granted.

2. The service provider will store all business documents the customer makes available for the provision of the service owed in due form and will ensure that these cannot be accessed by third parties. The service provider will personally ensure that any and all written documents and any material associated with the business of the customer that are in the service provider’s possession remain under lock and key.

3. The service provider will oblige their employees and any of their subcontractors to confidentiality in accordance with clauses 1 and 2 above.

 

VI. Remuneration, delay of payment, exceeding the cost estimate 

1. The remuneration is specified in the contract that is concluded. All prices are given excluding statutory VAT. The service provider invoices the payable remuneration to the customer. The customer has to pay the invoice without deductions within the time limit specified in the invoice.

2. In case of delay of payment, the service provider has the right to charge interest of 8% above the respective applicable base rate, unless the customer can prove that the service provider actually only incurred a lower damage. Section 288 clause 4 German Civil Code (BGB) applies. In case of default on payment or reasonable doubts regarding the customer’s ability to pay, the service provider has the right to demand advance payment for services not yet provided, to cancel any payment deadlines set, and to demand acceleration of any claims under the business relationship. The obligation of the service provider to provide a service is suspended for as long as the customer delays payment. The customer who is delaying payment has to reimburse any and all dunning, collection, and information costs to the service provider. The customer only has a right to set-off or retention in regard to any counterclaims the service provider does not dispute or that were determined by a court or if the counterclaim arises from the same legal transaction.

3. If the service provider discovers, during execution of the contract, that the amount set out in a cost estimate for the provision of the service will be exceeded, the service provider will notify the customer hereof immediately, provided that the amount set out in the cost estimate is exceeded by more than 10%. If that is the case, the service provider shall obtain the permission of the customer. Any amounts exceeding the cost estimate by more than 10% shall be paid by the customer.

 

VII. Travel costs, compensation for travel time 

1. In addition to the claim to remuneration as set out in section 7, the service provider is entitled to reimbursement of the necessary and proven travel costs they incur when providing their services as agreed in the contract.

2. Travel time shall be reimbursed in accordance with the applicable hourly or daily rates.

 

VIII. Contract term 

1. The contract term is specified in the contract in question.

2. Amongst others, the contract can be terminated without notice by either party to the contract in accordance with section VI(3) if the customer refuses permission for a not strictly necessary and unreasonable increase of the aforementioned amount by more than 10% of the cost estimate.

 

IX. Liability 

1. All information is provided and all offers made according to the best of our knowledge, but they are always non-binding and not subject to any guarantees.

2. No liability is accepted for any consequences of delays, missing or incorrect information, modifications of the object of the order, the factual situation, and for the circumstances for which the service provider is not responsible.

3. The service provider does not accept any liability for the success pursued with the provision of the service.

4. The service provider does not accept liability in case of minor negligence, especially not in case of errors occurring during inspection or measurement or transmission, provided that these do not constitute a violation of essential contractual duties. In this case, the obligation of the service provider to reimburse material damage and resulting further pecuniary losses is limited to contract-typical damage and to an amount equal to the order value.

5. The service provider is liable for grossly negligent or intentional conduct or for damage caused by injury to life, limb or health, in case of a violation of essential duties or if liability cannot be excluded under product liability law.

 

X. Force majeure/obstacles for delivery

Force majeure of any kind; unforeseen interruptions to operations, traffic or shipping; fire damage; flooding; unforeseeable shortages of labour, energy, raw materials or auxiliaries; industrial action; lockouts; public orders; existing or arising pandemics/epidemics or other obstacles the party obliged to provide a service is not responsible for and that delay or prevent the manufacture, shipping or acceptance or use or which render any such unreasonable shall release that party from the delivery or acceptance obligations for the time and to the extent of the interruption. This also applies if any of the aforementioned events occur at any sub-supplier/supplier. If the disruption causes the service to be delayed by more than eight weeks, both parties may withdraw from the contract.

 

XI. Data retention 

Notice pursuant to Art. 13 GDPR: When arranging and concluding the contract, the service provider collects personal data from the customer. These data will be used to negotiate and execute the contract. For further information, please see the privacy policy under www.bela-pharm.com

 

XII. Applicable law, place of jurisdiction

1. The applicable law is the law of the Federal Republic of Germany under exclusion of the CISG provisions.

2. If the customer has his business address or domicile within the European Union or the European Economic Area at the time the order is placed, the place of jurisdiction for any and all disputes between the parties is 49377 Vechta, Germany. This also applies if the customer does not have a general place of jurisdiction in Germany or if their domicile or habitual residence is unknown at the time action is brought. The service provider has the right to bring action at the place of jurisdiction of the purchaser. 

If the customer has his business address or domicile outside the European Union or the European Economic Area at the time the order is placed, all disputes shall be bindingly resolved in accordance with the arbitration rules of the German Arbitration Institute (DIS) under exclusion of ordinary legal proceedings. The arbitration board consists of three arbitrators. The place of arbitration is Hamburg, Germany. The language of the proceedings shall be English. Applicable law in the matter is German law under exclusion of the CISG provisions. The arbitration court may not publish the result of the arbitration proceedings.

3. In addition to these GTCs, the customer has to comply with any and all applicable local, national, and international laws, regulations and industrial codes addressing public procurement, conflicts of interest, corruption or bribery, and the purchaser will continue to do so in the future, including all laws passed in implementation on the OECD agreement on combating corruption.

 

XIII. Final provisions 

If individual provisions of the contact concluded with the customer, including these General Terms and Conditions, are or become fully or partially void, this shall not affect the validity of the remaining provisions. The fully or partially void regulation shall be replaced by that regulation that comes as close as possible to the economic goal pursued with the void regulation. Under no circumstances shall the provision of these General Terms and Conditions in question be replaced by the general terms and conditions of the customer.

 

Stand: June 1st, 2020