1.1 The following General Terms and Conditions of Sale (Terms and Conditions) shall apply to all present and future sales and other business transactions between Biotest and a customer relating to Biotest’s pharmaceutical products and other goods or services (hereinafter “products”). These Terms and Conditions shall be deemed to be accepted at the latest upon receipt of our products and/or services unless expressly agreed otherwise in writing with the customer in individual cases.
1.2 No variation to these Terms and Conditions shall be binding unless agreed in writing; varying terms proposed by the customer in its order, its general terms and conditions of purchase or any other document shall not be of any effect.
1.3 Biotest may only supply products to customers authorized to receive medicinal products according to the German Medicinal Product Act in its most recent version.
1.4 The words “us”, “our”, “ours” shall mean “Biotest", the words “you”, “your”, “yours” shall mean “the customer”.
2. Validity of Contracts
2.1 Biotest’s quotations and/or offers shall not be binding unless referred to expressly as binding or containing a specific period for acceptance by the customer. Biotest will be bound by individual offers for the period specified in the offer, or, if not specified therein, for a period of thirty (30) calendar days.
2.2 The customer’s orders shall not be deemed accepted unless and until confirmed by us in writing.
2.3 Orders accepted and confirme by Biotest shall not be cancelled, varied or suspended by the customer except with Biotest’s express agreement in writing.
3.1 The sales prices shall be as stated in the order accepted by Biotest; prices offered by Biotest in its quotations shall be binding for the period stated in the quotation (and if no period is stated, for not more than thirty (30) days from the date of the quotation), after which time Biotest shall have the right to change the prices.
Unless otherwise agreed in writing, all prices shall be for deliveries FCA Biotest’s site, Dreieich, Germany (Incoterms® 2010).
3.2 All prices shall be exclusive of any applicable value added tax (VAT) or other government charge or duty, which the customer shall be liable to pay for at the rate and in the manner from time to time given by law. The prices shall be net of any withholding tax payable by the customer, and in not event, the customer shall be entitled to withhold or deduct any such tax from the price.
3.3 If the single invoice value is below € 5,000 for products, an additional handling fee of € 300 will be charged per invoice of products.
3.4 Shipping charges for same day deliveries or outside regular working hours (courier fees etc.) shall be borne by the customer.
4.1 Unless otherwise agreed in writing, the customer shall pay the purchase price within thirty (30) calendar days of the date of Biotest’s invoice.
4.2 Payments shall not be deemed effected unless and until the due amount has been definitively cleared into Biotest’s bank account.
4.3 If the customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to Biotest, Biotest shall be entitled
- to suspend any further deliveries to the customer, to terminate them in accordance with applicable legal provisions, or to request advance payment;
- to request immediate payment for past deliveries;
- at its sole discretion, to apply any monies received from the customer, including but not limited to deposits or advance payments, towards the payment of the relevant invoice;
- to charge delay interest at a rate of 9 percentage points above the base rate published by German Central Bank (Deutsche Bundesbank) from time to time, from the due date until payment in full is made.
4.4 The customer shall not be entitled to any set-off against payments due to Biotest unless with claims that are undisputed or confirmed by a final and binding court order.
5.1 Unless otherwise agreed in writing, all deliveries shall be FCA, Biotest’s site, Dreieich, Germany (Incoterms® 2010).
5.2 Partial deliveries shall at all times be allowed.
5.3 Biotest shall not be responsible for any delays resulting from circumstances and events beyond its control; this shall, in particular, apply in case of late deliveries by Biotest’s suppliers, shortages in raw materials (such as human plasma). In any such event, Biotest will inform the customer without undue delay and indicate the new prospective delivery date and/or period. We shall be entitled, even if we are already in default, to make our delivery with a corresponding delay, including a reasonable lead time. Furthermore, we shall have the option of withdrawing from the contract, either in part or in whole, immediately or at a later date.
6. Transfer of risk
Transfer of risk shall be determined by the agreed Incoterm FCA, Biotest’s site, Dreieich, Germany (Incoterms® 2010).
7. Warranty and duty to examine
7.1 Any details in brochures, price lists and other information as well as product-describing information sent to the customer by us, shall in no event be interpreted as being a warranty for a specific quality of the delivered item; any such warranties as to quality must be expressly agreed upon in writing.
7.2 Biotest warrants that its products will correspond with their specifications at the time of delivery and will be free from defects in material and workmanship under normal use and proper transportation and storage (in accordance with the instruction contained on the package of the products and/or other equivalent instructions) for a period of twelve (12) months from the date of delivery of the supplies. If the storage and/or transport instructions as printed on the package of our products are not observed, all liability on our part shall cease. The burden of proof with regard to proper storage shall be with the customer.
7.3 Save for the warranties specified herein, all other warranties, conditions or other terms implied are excluded to the extent permitted by law; Biotest specifically disclaims the implied warranties of merchantability and fitness for a particular purpose.
7.4 The customer is obliged to inspect the products upon delivery and shall notify Biotest without undue delay in writing if there are any defects; in case of hidden defects, the customer shall notify Biotest without undue delay in writing once the defect has become apparent. The notification of any defects shall be accompanied with relevant supporting evidence, customer no. and, if reasonably possible, a sample.
7.5 Where any valid claim based on any defect in the quality or condition of the products or their failure to meet specifications is notified to Biotest in accordance with these conditions, Biotest’s sole liability shall be to remedy the defect – if being remediable - or replace the defective products (or the part in question) free of charge at Biotest’s sole discretion, or refund to the customer the price of the defective products (or a proportionate part of the price).
7.6 We shall be available to the customer for inquiries and advice to the best of our knowledge in respect of the use of the products. Any advice rendered by Biotest – whether verbal, in writing or by way of tests – in relation to its products is given to the best of Biotest’s knowledge, but without any warranty.
8. Damages and limitation of liability
8.1 Biotest shall only be liable for damages and expenses incurred by the customer as a result of Biotest’s wilful misconduct, gross negligence and negligent breach of material contractual obligations that need to be fulfilled for the contract to be properly performed and that, therefore, may reasonably be expected by the customer to be fulfilled (“Kardinalpflichten”); in the case of a breach of such a material contractual obligation, however, Biotest’s liability shall be limited to the foreseeable damages typical for this type of contract.
8.2 In the case of breach of other obligations, Biotest shall not be liable for damages resulting from simple negligence.
8.3 The above limitations of liability shall not apply in case of
- death and harm to body and health;
- statutory product liability and liability on the basis of other mandatory provisions;
- lack of specifically agreed qualities and intentionally concealed defects in the delivered products.
8.4 The limitation of liability in favour of Biotest shall also be for the benefit of Biotest’s authorized representatives, personnel and agents.
9. Reservation of title, securities
9.1 The following securities shall be provided until the full payment of all claims, also balance claims, which are due from the customer, regardless of whatever reason. The goods shall remain our property until payment of all existing claims in full.
9.2 Notwithstanding delivery and the passing of risk, title in the products delivered shall not pass to the customer until Biotest has received the purchase price for all deliveries for which payment is then due (Retention of Title).
9.3 Until such time as title passes to the customer, the products delivered under Retention of Title shall not be pledged or given as security; the customer undertakes to store such products in its premises separately from its own goods or those of any other person and in a manner which makes them readily identifiable as Biotest’s products, and to insure them against loss and damage at a reasonable level of coverage, provided that if products delivered under Retention of Title are lost or damaged, the customer shall assign its insurance claims to Biotest. The customer shall inform Biotest immediately in writing in the event of third parties attempting to take possession of such products.
9.4 If products delivered under Retention of Title are for commercial resale, the customer shall be entitled to resell them within the ordinary course of its business. The customer hereby assigns to Biotest, and Biotest hereby accepts the assignment, as a security, all future claims the customer shall have against its customers as a result of the resale of products delivered under Retention of Title. Biotest shall have the right to collect payment in relation to the claims so assigned on its own behalf if the customer is in default with its payment obligations towards Biotest, or if a petition for the initiation of insolvency proceedings has been filed; in this case, Biotest may request the customer to disclose the assigned claims and the identity of its customers, to provide all necessary information for debt recovery, to hand over all related documents and to notify the customers of the assignment.
9.5 Any processing of the products delivered under retention of title within the meaning of section 950 of the German Civil Code (Bürgerliches Gesetzbuch) shall be carried out on behalf of Biotest; such processing shall not entitle the customer to any claims against Biotest. In the event of a combination or inseparable commingling, as defined by sections 947 or 948 of the German Civil Code (Bürgerliches Gesetzbuch), of the products delivered under retention of title with other items, Biotest shall acquire a proportionate co-ownership interest in the newly created item.
9.6 If the security provided to Biotest under this section exceeds the customer’s total liabilities towards Biotest by more than 10%, Biotest shall be required, at the request of the customer, to release security up to the amount by which the threshold of 110% of the total secured liability has been exceeded.
9.7 If the Retention of Title as provided herein shall not be enforceable under the laws applicable at the place of business of the customer, the parties hereby agree that Biotest’s rights shall be reduced to the extent they are enforceable.
10. Drug Safety
Under mandatory provisions of law, e.g. of the EU pharmaceutical legislation and German Drug Law, Biotest is under an obligation to maintain a system for their pharmaceutical products in order to collect and evaluate information about drug risks and measures to avoid or minimize these risks; for this reason the customer shall inform Biotest immediately about all drug risks (e.g. suspected adverse drug reactions or defective pharmaceutical products) that became known to him:
Biotest AG, Corporate Drug Safety, Landsteinerstraße 5, D-63303 Dreieich, Germany, Tel. +49-6103-801-756, Fax: +49-6103-801-854, email: firstname.lastname@example.org
11. Place of jurisdiction; Applicable law; Partial invalidity/Data Protection
11.1 All disputes arising out of or in connection with dealings between Biotest and the customer shall be subject to the jurisdiction of the courts in Frankfurt/Main; however, Biotest shall have the right to bring action against the customer at the customer’s place of business.
11.2 These Conditions shall be governed by the laws of Germany; the UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
11.3 If any provision of these Conditions is held to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions shall not be affected but shall remain in full force and effect; the provision that is invalid or unenforceable shall automatically be replaced by a similar provision that comes closest, to the extent legally permissible, to the economic intent and purpose of the invalid provision.
11.4 For information according to the Data Protection Regulation relating to your personal data, please see our data protection notice under https://www.biotest.com/de/en/service_navigation/privacy_statement.cfm