§ 1 Scope of Applicability
The present General Terms and Conditions shall apply, excluding any Terms and Conditions of our Suppliers and subject to deviating agreements in writing, to all present and future deliveries of goods and services to INRESA Arzneimittel GmbH (hereinafter referred to as “INRESA GmbH”).
§ 2 Conclusion of Contracts
2.1 Orders and order acceptances of INRESA GmbH shall be deemed valid only if placed in writing.
2.2 Oral agreements prior to or upon conclusion of a contract shall require written confirmation by INRESA GmbH to become valid.
§ 3 Delivery and Contractual Penalties
3.1 All agreed dates and terms shall be binding. The Supplier shall not be entitled to invoke the reservation of insufficient supply of raw materials from its contractors. Receipt of the goods by INRESA GmbH or at the location to which the goods are to be delivered according to the order shall be decisive for compliance with dates and terms. Acceptance of any delayed delivery without reservations shall not constitute a waiver of any claims for damages which INRESA GmbH may be entitled to because of the delay.
3.2. Notwithstanding any further legal or contractual claims, in the case of delayed delivery INRESA GmbH shall be entitled to claim from the Supplier, in addition to fulfilment, a contractual penalty amounting to 0.2 % of the total order value per working day, but no more than 5 % of the total order value, as minimum damages. INRESA GmbH shall assert the reservation of contractual penalty within 10 working days from receipt of the delayed shipment, in the case of partial deliveries from receipt of the last partial delivery or in case of services to be furnished at the latest upon final payment against the Supplier. If the contractual penalty is assigned in divisible fashion to individual partial performances, the term of 10 working days shall be counted from receipt of the individual partial performance.
The Supplier shall be allowed to assert absence of necessary documents, services or components to be furnished by INRESA GmbH only if it has sent a reminder about the same in writing and still not received them immediately. In this case the Supplier may, excluding all other claims, demand an appropriate extension of the term for delivery, but no longer than by the time of the delay of the provision of the missing items.
3.3 Exceedance of the order quantity will not be accepted. If exceedance or shortfall of the order quantity should be technically inevitable, deviations of up to 5 % of the order quantity will be accepted.
3.4 As a matter of principle, goods will be received only on Mondays to Fridays, 08:00 o’clock to 16:00 o’clock. In case of operational disturbances due to force majeure, in particular due to strike, lockout, war, public unrest etc., INRESA’s obligation to reception shall be suspended for the duration of the interference.
§ 4 Shipping Costs and Packaging
4.1 All packaging shall be defrayed by the Supplier unless explicitly agreed otherwise in writing. If the Supplier has assumed set-up or installation, the Supplier shall bear any necessary ancillary costs (e.g. travel costs, provision of tools) unless agreed otherwise.
4.2 Packaging costs may be invoiced only in case of a separate agreement to this effect, confirmed by INRESA GmbH. Returnable packagings must be clearly identified as such and listed in the supply notes as such. INRESA GmbH shall not be obliged to return them.
§ 5 Transfer of Risk
The Supplier shall bear the risk of accidental loss, destruction or deterioration of the purchased goods until receipt of the same by INRESA GmbH or its agents at the location which the goods are to be delivered to according to the contract.
§ 6 Invoice
Invoices shall be submitted immediately after delivery. Each invoice must meet all requirements of § 14 of the German Value Added Tax Act, in particular comprise the correct designation of the company, statement of the tax, date of invoice and order number. In the absence of these data, until clarification the invoice shall not be deemed submitted and the underlying claim not due yet.
§ 7 Payment
7.1 No advance or down payments whatsoever will be made.
7.2. Payments shall be made, at the choice of INRESA GmbH, unless agreed otherwise upon placement of the order, within 14 days after receipt of the invoice subject to 2 % discount or within 60 days after receipt of the invoice net. If the Supplier should grant a discount of more than 2 %, the higher discount shall be deemed agreed. Payments shall be effected subject to invoice verification.
7.3. If during the payment term of INRESA GmbH any warranty claims should be asserted, expiry of the payment term shall be suspended until rectification of the defect.
7.4 INRESA GmbH shall have the right to offsetting and retention as far as permissible under applicable law.
7.5 If and insofar as INRESA GmbH is obliged to pre-payment, these shall be collateralised by the Supplier by temporally unlimited guarantees of a German bank amounting to the gross amount of the prepayment.
§ 8 Examination of Goods and Notice of Defects
8.1 Delivered goods shall be examined by INRESA GmbH at the latest within 14 days after receipt. If the examination should reveal any deficiencies, the same shall be notified in due time.
8.2 INRESA GmbH shall be obliged to examination and to notification of defects, if there should be any, only insofar as this has been agreed in writing.
8.3 The [date of] dispatch of the notice of defects to the Supplier shall be decisive for its timeliness.
8.4 Incidentally, § 377 V of the German Commercial Code shall apply.
§9 Warranty Claims
9.1 The statutory provisions for defects as to quality or title shall apply unless explicitly overruled by deviating provisions in the present General Terms and Conditions.
9.2 INRESA GmbH shall have the right to choose the form of supplementary performance. If the Supplier should fail to begin rectification of the defect immediately after the demand by INRESA GmbH, in urgent cases within the Supplier’s responsibility and after unsuccessful reminder INRESA GmbH shall have the right to either remedy the defect itself or have it remedied by a third party or to procure replacement, each at the Supplier’s costs. INRESA GmbH shall have the right to remedy the defect, have it remedied or procure a replacement also if the Supplier should be in default with regard to the fulfilment of his rectification obligations.
9.3 The limitation period for warranty claims shall be three years from transfer of the risk, unless the goods have been used, according to their customary use, for a building and thereby caused a defect of the latter.
9.4 If within three months after transfer of the risk a material defect should be noted, said defect shall be presumed to have been present already upon transfer of the risk, unless this presumption is irreconcilable with the type of the goods or of the defect.
9.5 For essential replacement parts of the shipment which are delivered within the limitation period for fulfilment of warranty claims acknowledged by the Supplier, the limitation period shall recommence upon completion of supplementary performance.
9.6 If the Supplier or any third party has assumed or provided a guarantee (of quality or durability), INRESA GmbH shall furthermore have the claims derivable from said guarantee to their utmost extent.
§ 10 Termination
In case of circumstances justifying the suspicion that the order will not be executed properly, in particular in case of deterioration of assets or cessation of operation or payments on the part of the Supplier, INRESA GmbH shall have the right to extraordinary termination of the contract without notice.
§ 11 Secrecy
11.1 All commercial or technical information which the Supplier may receive from INRESA GmbH shall be kept secret from third parties and may be disclosed in the Supplier’s own business only to such persons as are likewise obliged to secrecy.
11.2 Without prior written agreement of INRESA GmbH, such information must not be copied or commercially used. This shall not apply insofar as the information is demonstrably publicly known.
11.3 Upon request, the Supplier shall immediately and completely return to INRESA GmbH or destroy all information received from INRESA GmbH, including any copies of the same.
§ 12 Industrial / Intellectual Property Rights
12.1 The Supplier represents that the delivery is free of and unencumbered by rights of third parties. If INRESA GmbH should be claimed against by any third party in this regard, the Supplier shall indemnify and hold harmless INRESA GmbH from and against all such claims upon first request. This obligation to indemnification shall cover all expenses which INRESA GmbH may necessarily incur from or in the context of being claimed against by third parties.
12.2 Under its liability for damage cases according to 12.1, the Supplier shall also bear any expenses pursuant to §§ 683, 670 of the German Commercial Code or to §§ 830, 84, 426 of the German Civil Code which may arise from or in the context of a recall action performed by INRESA GmbH. INRESA GmbH shall inform the Supplier – as far as possible and reasonable – about the contents and scope of the recall activities to be performed, and give the Supplier an opportunity to comment.
§ 13 Industrial / Intellectual Property Rights
13.1 The Supplier represent that in the context of its delivery no rights of any third parties within the European Union are infringed.
13.2 If INRESA GmbH should be claimed against by any third party in this regard, the Supplier shall indemnify and hold harmless INRESA GmbH from and against all such claims upon first request.
13.3 This obligation to indemnification shall cover all expenses which INRESA GmbH may necessarily incur from or in the context of being claimed against by third parties.
§ 14 Concluding Provisions
14.1 The place of performance shall be the place to which the goods are to be delivered according to the order.
14.2 The contractual relationship shall be exclusively subject to and governed by German law, excluding and waiving application of the CISG.
14.3 The legal venue for all and any disputes relating to the conclusion or execution of the contractual relationship shall be Freiburg im Breisgau; any exclusive legal venues shall remain unaffected thereby.
14.4 If any provision of the contract concluded between INRESA GmbH and the supplier, including the present General Terms and Conditions of Purchase, should be or become invalid, the other provisions of the contract including the present General Terms and Conditions shall remain unaffected thereby and continue to be effective and binding.