GTCs

1. Scope of application

(1) These General Terms and Conditions ("GTC") apply to all business relationships between Dentinox Gesellschaft für pharmazeutische Präparate Lenk & Schuppan KG and our customers ("Buyers"). The GTC only apply if the Buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.

(2) Unless otherwise agreed, the GTC in the version valid at the time of the Buyer's order or in any case in the version last communicated to the Seller in text form shall also apply as a framework agreement for similar future contracts without us having to refer to them again in each individual case. 

(3) Our General Terms and Conditions apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Buyer shall only become part of the contract if and insofar as we have expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if the Buyer refers to his general terms and conditions in the context of the order and we do not expressly object to this.

(4) Individual agreements (e.g. framework supply agreements, quality assurance agreements) and information in our order confirmation shall take precedence over the GTC. In case of doubt, trade terms shall be interpreted in accordance with the Incoterms® issued by the International Chamber of Commerce in Paris (ICC) in the version valid at the time of conclusion of the contract.6

(5) Legally relevant declarations and notifications by the Buyer in relation to the contract (e.g. setting of deadlines, notification of defects, cancellation or reduction) must be made in writing. Written form within the meaning of these GTC includes written and text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the declarant, remain unaffected.

(6) References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.

2. Conclusion of contract

(1) Our offers are subject to change and non-binding. This shall also apply if we have provided the Buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, costings, references to DIN standards), other product descriptions or documents – including in electronic form – to which we reserve ownership rights and copyrights. 

(2) The order of the goods by the Buyer shall be deemed a binding contractual offer. Please quote our article numbers when ordering. Unless otherwise stated in the order, we are entitled to accept this contractual offer within 3 weeks of its receipt by us.

(3) All agreements and orders shall only be accepted by our written order confirmation or by delivery and performance. If the terms of our order confirmation differ from the terms of the order, the order confirmation shall apply. 

3. Delivery period and delay in delivery

(1) The delivery period shall be agreed individually or specified by us upon acceptance of the order. If this is not the case, the delivery period is approximately three weeks from conclusion of the contract. 

(2) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the Buyer of this immediately and at the same time inform the Buyer of the expected new delivery deadline. If the service is also not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will immediately reimburse any consideration already paid by the Buyer. Non-availability of the service exists, for example, in the event of late delivery by our suppliers, if we have concluded a congruent hedging transaction, in the event of other disruptions in the supply chain, for example due to force majeure or if we are not obliged to procure in individual cases.

(3) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder from the Buyer is required. If we are in default of delivery, the Buyer may demand lump-sum compensation for the damage caused by the delay. The liquidated damages shall amount to 0.5% of the net price (delivery value) for each completed calendar week of delay, but shall not exceed a total of 5% of the delivery value of the goods delivered late. We reserve the right to prove that the Buyer has suffered no damage at all or only significantly less damage than the above lump sum.

(4) The rights of the Buyer pursuant to § 9 of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent fulfilment), shall remain unaffected.

4. Delivery, transfer of risk, acceptance, default of acceptance

(1) Delivery is ex warehouse. The place of fulfilment for the delivery is Berlin. At the Buyer's request and expense, the goods will be dispatched to another destination (sale by despatch). Unless otherwise agreed, we are entitled to determine the type of dispatch (in particular transport company, dispatch route, packaging) ourselves. Deliveries to wholesalers are made free of charge from an order value of 300 EURO, excluding surface freight receipt. Deliveries on a detailed price basis are free of charge from 50 EURO.

(2) In the event of force majeure and other unforeseeable, extraordinary circumstances for which we are not responsible (e.g. war, blockade, fire, natural disasters, riots, lack of personnel due to illness, strike, lockout, operational or transport disruptions, difficulties in procuring materials and energy supplies and official intervention), we shall be entitled to extend the delivery period by a reasonable amount if this prevents us from fulfilling our obligations on time. The delivery period shall be extended by the duration of the disruption in the event of force majeure, strike or lockout as well as in the event of unforeseen obstacles beyond our control, insofar as such obstacles affect the completion or delivery of the delivery item or the fulfilment of our service. Under the aforementioned circumstances, we are entitled to withdraw from the contract in whole or in part if the delivery or service becomes permanently impossible or unreasonable for us. This shall also apply if the aforementioned circumstances occur at our suppliers.

(3) The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer at the latest upon handover. In the case of sale by dispatch, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the forwarding agent, freight carrier or other person or organisation designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply accordingly to an agreed acceptance. If the Buyer is in default of acceptance, this shall be deemed equivalent to handover or acceptance.

(4) If the Buyer is in default of acceptance, fails to co-operate or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this we charge a lump sum compensation in the amount of EUR 0.1% per calendar day, beginning with the delivery deadline or – in the absence of a delivery deadline – with the notification that the goods are ready for dispatch.

Proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, cancellation) shall remain unaffected; however, the lump sum shall be offset against further monetary claims. The Buyer shall be entitled to prove that we have incurred no loss at all or only a significantly lower loss than the above lump sum.

5. Prices and terms of payment

(1) Unless otherwise agreed in individual cases, our current prices and conditions at the time of conclusion of the contract shall apply, ex warehouse. The prices are in EURO (€) plus statutory VAT.  All our prices are ex works, excluding freight, customs, packaging, insurance, installation, assembly and other customary ancillary costs. These will be invoiced separately. The place of fulfilment for payment is Berlin.

(2) In the case of sale by despatch (§ 4 para. 1), the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. If we do not invoice the transport costs actually incurred in the individual case, a flat-rate transport charge (excluding transport insurance) in the amount of EUR [...] shall be deemed agreed. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.

(3) The purchase price is due on the dates stated in the order confirmations or invoices, otherwise within 30 days of the invoice date net cash, and within 14 days of invoicing and delivery or acceptance of the goods. However, we are authorised at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation with the order confirmation at the latest. We grant a 2% discount for payment within eight days and a 3% discount for immediate direct debit. If no other agreements have been made, default of payment shall occur in accordance with § 286 para. 3 sentence 2 BGB (Bürgerliches Gesetzbuch - German Civil Code) at the latest 30 days after receipt of the goods. 

(4) The Buyer shall be in default upon expiry of the above payment period. During the period of default, the purchase price shall bear interest at a rate of 8% above the base rate in accordance with § 288 BGB. We reserve the right to assert further claims for damages caused by delay. Our claim to commercial maturity interest (§ 353 HGB - Handelsgesetzbuch:German) against merchants remains unaffected.

(5) The Buyer shall only be entitled to set-off or retention rights to the extent that his claim has been legally established or is undisputed. In the event of defects in the delivery, the Buyer's counter-rights shall remain unaffected, in particular pursuant to § 8 (6) sentence 2 of these GTC.

(6) If it becomes apparent after conclusion of the contract (e.g. through an application to open insolvency proceedings) that our claim to the purchase price is jeopardised by the Buyer's inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB).

6. Debt collection

Commercial agents working for us are not authorised to collect payments.

7. Retention of title

(1) We reserve title to the goods sold until full payment of all our current and future claims arising from the purchase contract and an ongoing business relationship (secured claims).

(2) The reserved goods may only be disposed of in the ordinary course of business. The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The Buyer must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties seize the goods belonging to us (e.g. seizures); in the event of seizures by third parties, the Buyer is obliged to object immediately with reference to our retention of title. The purchase price claim shall be deemed assigned to us by way of security if the reserved goods are resold before full payment has been made. If legal action is taken against the Buyer, claims that are not yet due shall become due immediately and can be enforced.

(3) In the event of breach of contract by the Buyer, in particular non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand for the return of goods does not at the same time include a declaration of cancellation; rather, we are entitled to merely demand the return of the goods and reserve the right to cancel the contract. If the Buyer does not pay the purchase price due, we may only assert these rights if we have previously set the Buyer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.

(4) Until revoked in accordance with (c) below, the Buyer is authorised to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.

a) The retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of our goods, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered subject to retention of title.

b) The Buyer hereby assigns to us as security any claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the Buyer mentioned in paragraph 2 shall also apply with regard to the assigned claims.

c) The Buyer remains authorised to collect the claim in addition to us. We undertake not to collect the claim as long as the Buyer fulfils his payment obligations to us, there is no defect in his ability to perform and we do not assert the retention of title by exercising a right in accordance with Para. 3. If this is the case, however, we can demand that the Buyer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. In this case, we are also entitled to revoke the Buyer's authorisation to resell and process the goods subject to retention of title.

d) If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the Buyer's request.

8. Buyer's claims for defects, obligation to give notice of defects

(1) The statutory provisions shall apply to the Buyer's rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly/installation or defective instructions), unless otherwise specified below. In all cases, the statutory provisions on the sale of consumer goods (§§ 474 ff. BGB) and the rights of the Buyer from separately issued guarantees, in particular on the part of the manufacturer, remain unaffected.

(2) The basis of our liability for defects is above all the agreement reached on the quality and intended use of the goods (including accessories and instructions). All product descriptions and manufacturer's specifications which are the subject of the individual contract or which were made public by us (in particular in catalogues or on our Internet homepage) at the time of conclusion of the contract shall be deemed to be a quality agreement in this sense. If the quality has not been agreed, it is to be assessed in accordance with the statutory regulation whether a defect exists or not (§ 434 Para. 3 BGB). Public statements made by the manufacturer or on its behalf, in particular in advertising or on the labelling of the goods, take precedence over statements made by other third parties.

(4) In principle, we shall not be liable for defects which the Buyer is aware of or is grossly negligent in not being aware of when the contract is concluded (§ 442 BGB). Furthermore, the Buyer's claims for defects presuppose that he has fulfilled his statutory inspection and notification obligations (§§ 377, 381 HGB). If a defect is discovered during delivery, inspection or at any later point in time, we must be notified of this in writing within ten days, stating the delivery or invoice number. In any case, obvious defects must be reported in writing within ten days of delivery and defects not recognisable during the inspection within the same period from discovery. If the Buyer fails to properly inspect the goods and/or report defects, our liability for the defect not reported or not reported on time or not reported properly shall be excluded in accordance with the statutory provisions. In the event of transport damage, compensation can only be paid if a damage report confirmed by the postal or railway authorities or another carrier (e.g. UPS, DPD or similar) is submitted within the specified period. Goods can only be returned free to the seller's premises by prior agreement. There is no claim for compensation for returns without our consent.

(5) If the delivered item is defective, we may initially choose whether to provide subsequent fulfilment by remedying the defect (subsequent improvement) or by delivering a defect-free item (replacement delivery). If the type of subsequent fulfilment chosen by us is unreasonable for the Buyer in the individual case, he can reject it. Our right to refuse subsequent fulfilment under the statutory conditions remains unaffected.

(6) We are entitled to make the subsequent fulfilment owed dependent on the Buyer paying the purchase price due. However, the Buyer is entitled to retain a reasonable part of the purchase price in proportion to the defect.

(7) The Buyer shall give us the time and opportunity required for the subsequent fulfilment owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective item to us at our request in accordance with the statutory provisions; however, the Buyer shall not be entitled to return the item.

(8) We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs, in accordance with the statutory provisions and these GTC, if a defect actually exists. Otherwise, we may demand compensation from the Buyer for the costs arising from the unjustified request to remedy the defect if the Buyer knew or could have recognised that there was in fact no defect.

(9) In urgent cases, e.g. if operational safety is jeopardised or to prevent disproportionate damage, the Buyer shall have the right to remedy the defect himself and to demand compensation from us for the expenses objectively necessary for this purpose. We must be informed immediately, if possible in advance, of any such self-remedy. The right of self-remedy does not exist if we would be entitled to refuse a corresponding subsequent fulfilment in accordance with the statutory provisions.

(10) If a reasonable deadline to be set by the Buyer for subsequent fulfilment has expired unsuccessfully or is dispensable in accordance with the statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price in accordance with the statutory provisions. However, there is no right of cancellation in the event of an insignificant defect.

(11) Claims of the Buyer for reimbursement of expenses pursuant to Section 445a (1) BGB are excluded unless the last contract in the supply chain is a sale of consumer goods (Sections 478, 474 BGB). Claims of the Buyer for damages or reimbursement of futile expenses (§ 284 BGB) shall only exist in accordance with the following §§ 9 and 10, even in the case of defects in the goods.

9. Other liability

(1) Unless otherwise stated in these GTC including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.

(2) We shall be liable for damages – irrespective of the legal grounds – within the scope of fault-based liability in the event of intent and gross negligence. In the event of simple negligence, we shall only be liable, subject to statutory limitations of liability (e.g. care in our own affairs; insignificant breach of duty), only

a) for damages resulting from injury to life, body or health,

b) for damages arising from the breach of an essential contractual obligation (obligation whose fulfilment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.

(3) The limitations of liability resulting from paragraph 2 shall also apply to third parties and in the event of breaches of duty by persons (including in their favour) whose fault we are responsible for in accordance with statutory provisions. They do not apply if a defect has been fraudulently concealed or a guarantee has been given for the quality of the goods and for claims of the Buyer under the Product Liability Act.

(4) The Buyer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of cancellation of the Buyer (in particular according to §§ 650, 648 BGB) is excluded. Otherwise, the statutory requirements and legal consequences apply.

10. Statute of limitations

(1) Notwithstanding § 438 Para. 1 No. 3 BGB, the general limitation period for claims arising from material defects and defects of title is one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.

(2) The above limitation periods of the sales law shall also apply to contractual and non-contractual claims for damages of the Buyer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. The Buyer's claims for damages pursuant to § 9 para. 2 sentence 1 and sentence 2(a) as well as pursuant to the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.

11. Sale of pharmaceuticals

(1) If the goods ordered are medicinal products under the German Medicinal Products Act (AMG), the Buyer must ensure that he fulfils the obligations incumbent on him under medicinal products law, e.g. the duty of notification under Section 67 AMG and the prohibition of self-service under Section 52 AMG.

(2) If the Buyer is a retailer and the goods ordered are over-the-counter medicinal products pursuant to Section 50 AMG that are authorised for sale outside pharmacies, the purchaser must ensure that the entrepreneur, a person legally appointed to represent the company or a person appointed by the entrepreneur to manage the company or to sell the goods has the necessary expertise pursuant to Section 50 para. 2 AMG (Arzneimittelgesetz - Medicines Act). In the case of companies with several operating centres, there must be a person with the required expertise for each operating centre.

(3) If the Buyer is a wholesaler and the goods ordered are medicinal products within the meaning of the AMG, the Buyer must ensure that he fulfils the obligations incumbent on him under medicinal product law, e.g. obtaining a wholesale authorisation in accordance with Section 52a AMG.

12. Data protection

Insofar as Dentinox Gesellschaft für pharmazeutische Präparate Lenk & Schuppan KG processes personal data, the statutory provisions on data protection are observed. In this case, the details of the data collected and their respective processing can be found in a data protection declaration provided by us.

13. Choice of law and place of jurisdiction

(1) These GTC and the contractual relationship between us and the Buyer shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.

(2) If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Berlin. The same applies if the Buyer is an entrepreneur within the meaning of § 14 BGB. However, in all cases we shall also be entitled to bring an action at the place of fulfilment of the delivery obligation in accordance with these GTC or an overriding individual agreement or at the Buyer's general place of jurisdiction. Overriding statutory provisions, in particular regarding exclusive responsibilities, remain unaffected.