The following General Terms and Conditions of Sale and Delivery (hereinafter referred to as “GTC”) shall apply to sales and deliveries of pharmaceutical products by alephSana GmbH, Kurfürstendamm 48, 10707 Berlin, Germany (hereinafter referred to as “alephSana”) to the Customers ordering these products (hereinafter referred to as “Customer”/”Customers”). We shall not accept any general terms and conditions of the Customer that conflict with or deviate from these GTC unless we have approved such conflicting or deviating general terms and conditions in writing in a particular case.
The current terms and conditions are available for download using the link www.alephsana.com/AGB.html.
1. Order and conclusion of the contract
1.1 The order of the products at alephSana shall be placed in writing, by fax, by e-mail or via the website order.alephsana.com, specifying the type and quantity of the products as well as the preferred delivery date. If there is no indication of the delivery date, it shall be assumed that the delivery is to be made at the next possible date.
1.2 Each Customer order constitutes a binding offer to purchase alephSana’s products subject to these GTC. The order shall only be deemed accepted if it has been confirmed in writing by alephSana or if alephSana delivers the ordered products to the Customer.
1.3 Upon acceptance of the order, a contract of sale (hereinafter: “Contract”) shall be concluded between alephSana and the Customer placing the order, subject to these GTC as well as the specifications contained in the order, unless specifically agreed otherwise in writing between alephSana and the Customer.
2. Proof and notification obligations of the Customer
2.1 When placing the first order as well as at regular intervals thereafter or upon request by alephSana, the Customer is obliged to provide evidence of the relevant permits and licenses, e.g. the wholesale permit pursuant to § 52a of the German Medicines Act (“AMG”), the permit to operate a pharmacy pursuant to § 1 para. 1 Pharmacy Act (“ApoG”) or the permit to operate a hospital pharmacy pursuant to § 14 para. 1 ApoG as well as the narcotics number notice of the Federal Opium Agency, in current and valid form to alephSana by e-mail, fax, post transmission of a corresponding copy, or via the website order.alephsana.com
2.2 The Customer must notify alephSana without undue delay about any changes in connection with the permits and authorizations described in section 2.1 and in particular about their expiration.
2.3 alephSana may refuse the delivery of the ordered products, until all permissions and licenses according to clause 2.1 are made available.
3. Prices and Terms of Payment
3.1 The prices according to the order form valid at the time of the order shall apply, unless another price is stated in the order confirmation in an individual case.
3.2 The prices don’t include the value added tax, nor the costs for shipping and packaging as well as other additional costs, if any, unless expressly agreed otherwise in writing.
3.3 alephSana shall issue an invoice for the delivered products.
3.4 All payments shall be made exclusively to the account of alephSana as stated on the invoice.
3.5 Unless otherwise agreed in writing, the invoice amount shall be due for payment without deduction within 30 days from the invoice date.
3.6 Interest on delayed payments shall be charged in the amount of 9 percentage points above the respective base interest rate p.a.. We reserve the right to assert a higher specific damage caused by default. The Customer shall then be entitled to prove that no or only minor damage has been incurred as a result of the delay in payment.
3.7 If the payment is delayed by the Customer, alephSana shall be free to withhold further deliveries or to deliver only in case of prepayment. Further legal claims of alephSana shall remain unaffected.
3.8 The set-off with Customer’s counterclaims or the retention of payments due to such claims shall only be admissible if the counterclaims are either undisputed or have been established by a judgement that cannot be appealed against or are based result from the same contractual relationship as the main claims. In the event of defects, the Customer’s counterclaims shall remain unaffected.
4.1 Deliveries of products shall be made exclusively to the delivery address specified by the Customer. The Customer must ensure at all times that the delivery address used in the order processing is correct.
4.2 If according to clause 3.2 of these GTC it has been expressly agreed in writing that alephSana shall bear the costs for the shipment of products, alephSana shall conclude the transport contract as well as a transport insurance, unless otherwise agreed. For the delivery, alephSana may use shipping service providers
4.3 The delivery shall be deemed fulfilled as soon as the goods have been duly handed over by alephSana to a shipping service provider (carrier). At this time, the risk of accidental loss and accidental deterioration of the products shall also pass to the Customer.
4.4 If no fixed delivery date has been agreed, delivery shall be made at the next possible date. If a fixed delivery date has been agreed upon, shipment on the agreed delivery date shall be sufficient for compliance therewith.
4.5 Unless otherwise agreed, alephSana shall be entitled to make partial deliveries, provided that this is reasonable for the Customer.
4.6 A prerequisite for the compliance with any agreed delivery date is the timely and proper fulfillment of the Customer’s obligations, in particular the provision of required documents (such as permits and licenses according to clause 2.1) as well as, if pre-payment has been agreed upon, the receipt thereof by alephSana.
4.7 The delivery is subject to timely and correct self-delivery. If alephSana is not supplied in time despite the conclusion of a corresponding covering transaction for reasons for which alephSana is not responsible for, it shall be entitled to rescind the contract. alephSana undertakes to inform the Customer immediately about the non-availability in case of non-timely and incorrect self-delivery and to reimburse the Customer immediately for any counter-performance already rendered.
4.8 If unforeseen events occur for which alephSana is not responsible (in particular force majeure, interruption of operations, lawful strikes or lockouts at alephSana or a supplier, governmental interventions in operations, shortages of energy or raw materials), which significantly affect the completion or delivery of the products as agreed upon, the delivery time shall be extended by the time of the duration of the impediment.
If such events make the delivery or performance substantially more difficult or impossible for alephSana to fulfill and if the hindrance is not only of temporary duration, alephSana shall be entitled to rescind the contract. If the Customer cannot be expected to accept the delivery or service due to the delay, the Customer may withdraw from the contract by giving alephSana an immediate written notice.
4.9 If the Customer is in default of acceptance or in default of cooperation, the risk of accidental loss or accidental deterioration of the products shall pass to the Customer at the time of default. alephSana shall be entitled to claim compensation for any resulting damage plus any additional expenses.
5. Retention of Title
5.1 Until receipt of all payments resulting from the business relationship between alephSana and the Customer, alephSana reserves the title to the delivered products according to § 449 para. 1 of the German Civil Code (“BGB”) (“Retained Products”). In case of a breach of contract by the Customer, alephSana shall be entitled to take back the retained products after having set a reasonable period of time. In this case, the Customer shall be obliged to return the retained products. The taking back of the retained products by alephSana shall always constitute a rescission of the contract.
5.2 For the duration of the retention of title, the Customer shall be obliged to handle the retained products with care, to store them properly and to insure them adequately at its own expense against all usual risks, in particular against theft, fire and water damage.
5.3 The Customer shall immediately inform alephSana in writing in case of seizure or other interventions by third parties in the retained products.
5.4 The Customer shall be revocably entitled to resell the retained products in the ordinary course of business. Already now, the Customer assigns to alephSana its claim from the resale of the retained products in the amount of the final invoice amount including VAT agreed upon with alephSana. alephSana hereby accepts the assignments. The Customer remains authorized to collect the claim even after assignment. This shall not affect alephSana’s right to collect the claim itself. alephSana undertakes not to notify the third party debtor of the assignment of the claim and not to collect the claims as long as the Customer meets its payment obligations and in particular as long as no application for the opening of insolvency proceedings has been filed, not to notify the third party debtor of the assignment of the claim and not to collect the claims.
5.5 The processing or transformation of the retained products by the Customer shall always be carried out for alephSana. If the retained products are processed together with other items not owned by alephSana, alephSana shall acquire co-ownership in the new items by processing or transformation in proportion of the value of the retained products to the other processed items at the time of processing or transformation. In all other respects, the same shall apply to the items created by processing or transformation as to the retained products.
5.6 If the retained products are inseparably combined or mixed with other items not owned by alephSana, alephSana shall acquire co-ownership in the new items in proportion of the value of the retained products to the other combined or mixed items at the time of combination or mixing. If an item owned by the Customer is to be regarded as the main item during the combination or mixing, it shall be deemed agreed that the Customer transfers co-ownership to alephSana on a pro rata basis. The Customer shall keep the sole ownership or the co-ownership of alephSana for alephSana.
5.7 alephSana undertakes to release the securities to which it is entitled upon the Customer’s request to the extent that their value exceeds the claims to be secured and not yet settled by more than 10%.
6.1 The warranty period shall be 6 months from the passing of risk. This period shall not apply to claims for damages of the Customer resulting from injury to life, body or health or from intentional or gross negligence breaches of duty of alephSana or its vicarious agents, which shall be time-barred according to the statutory provisions.
6.2 Claims of the Customer due to a material defect require that the Customer has fulfilled its obligation according to § 377 HGB (German Commercial Code) to immediately inspect and report defects.
The Customer shall notify alephSana in writing of any recognizable defects within one week after receipt of the products.
The postmark of the notice of defect is sufficient for the timeliness. With regard to other defects, the goods are deemed to be approved by the Customer if the notice of defect is not received by alephSana within one week from the time the defect became apparent. If the defect was already recognizable to the Customer at an earlier point in time during normal use, this earlier point in time shall, however, be decisive for the beginning of the period for giving notice of defects.
6.3 alephSana shall not be responsible for any loss of quality or reduction of the effectiveness of the products, if the Customer failed to store the products properly or has stored them beyond the shelf-life limit.
6.4 In case of a defect notified in time, which does not only insignificantly reduce the value or the usability of the products, alephSana shall be entitled to choose between supplementary performance by either replacement or improvement of the delivered products.
6.5 If the supplementary performance has failed or been refused by alephSana, the Customer may reduce the purchase price or withdraw from the contract. The right to claim damages remains unaffected.
7.1 alephSana shall only be liable in accordance with the statutory provisions for damages that alephSana or its vicarious agents have caused intentionally or by gross negligence. This does not apply to the violation of essential contractual obligations. In case of breach of essential contractual obligations, liability is limited to the foreseeable damages typical for the contract, which were foreseeable at the time of conclusion of the contract or at the latest at the time of commission of the breach of duty. Material contractual obligations are those contractual obligations which would
jeopardize the purpose of the contract and on the performance of which the Customer may therefore legitimately rely on in case of breach.
7.2 Claims for damages under the Product Liability Act, under Sections 84 et seq. of the German Medicines Act as well as for injury to life, body and health shall remain unaffected.
7.3 alephSana shall not be liable for damages resulting from improper handling or improper use of the delivered products.
8.1 The Customer warrants that he and his personnel shall comply with all anti-corruption regulations within the scope of the entire contractual relationship.
8.2 If alephSana becomes aware of a violation of anti-corruption regulations by the Customer or its personnel, alephSana may request the Customer to make a statement. If the Customer does not succeed in eliminating the suspicion within 5 (five) days after receipt of the request for a statement, alephSana may terminate the contractual relationship without notice. In case of a termination according to this provision, the Customer shall not be entitled to any compensation claims against alephSana; however, the Customer shall be liable to alephSana for possible damages.
9. Final Provisions
9.1 The relationship between the Customer and alephSana shall be governed exclusively by German law to the exclusion of international private law and the UN Convention on Contracts for the International Sale of Goods.
9.2 The place of jurisdiction for all disputes between the Customer and alephSana, as far as permitted by law, shall be Berlin.
9.3 Should one or more provisions of the contract or these GTC be or become void, invalid or unenforceable in whole or in part, the validity of the remaining provisions shall not be affected thereby.