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General Terms and Conditions of Purchase of ilapo Internationale Ludwigs-Arzneimittel GmbH & Co. KG (AEB)

1. Scope of application, diverging general terms and conditions of business, individually negotiated terms 

1.1 The legal relations between us, ilapo Internationale Ludwigs-Arzneimittel GmbH & Co. KG, and Supplier are governed exclusively by these Terms and Conditions of Purchase. The version applicable from time to time may also be viewed by Supplier on the Internet at www.ilapo.de. Any general terms and conditions of business of Supplier conflicting with or diverging from these Terms and Conditions of Purchase shall not be accepted unless we have specifically and expressly agreed to them. In the case of continuous business relations these Terms and Conditions of Purchase shall also apply to all future transactions between Supplier and us. 

1.2 Any individually negotiated agreements with Supplier as well as any terms in our orders conflicting with these Terms and Conditions of Purchase shall take precedence over these Terms and Conditions of Purchase.

2. Written form, orders, acceptance period 

2.1 All orders and declarations of acceptance, amendments and any other subsidiary arrangements and agreements made prior to or at the time of conclusion of a contract must be in written form (letter, fax, email) to become legally effective. 

2.2 Unless otherwise agreed a contract will become effective in that we place a binding order which is accepted by Supplier in writing or by delivering the goods ordered. Unless otherwise specified or agreed, we shall be bound to our orders for three weeks from the order date. 

3. Delivery deadlines/periods, delay, duty of notification, Supplier’s right of retention and setoff 

3.1 Unless agreed otherwise, all agreed delivery deadlines and delivery periods are binding. Timely receipt of the goods by us determines whether or not a delivery deadline or delivery period has been observed. 

3.2 In the event of a delay in delivery Supplier will compensate us for any losses incurred by such delay. Notwithstanding his potential liability for noncompliance with the agreed delivery deadline, Supplier is obliged to notify us in writing without delay of any foreseeable delays in delivery. This includes cases of force majeure, operational breakdowns, shortage in resources etc. Failure to notify us or to notify us in a timely manner will give rise to Supplier’s liability for any losses incurred by us as a result unless Supplier is not responsible for the failed or late notification. 

3.3 Supplier may assert a right of retention in view of the delivery only if it is based on claims from the same contractual relationship which are uncontested, ready for a decision or established by final enforceable judgment. Any setoff shall be excluded unless Supplier’s claim is uncontested, ready for a decision or established by final enforceable judgment. 

4. Packaging/labelling, place of performance, shipping/risk, shipping papers/invoices, cross-border deliveries 

4.1 Unless agreed otherwise the deliverables shall be duly and properly packaged and labelled, in accordance with our instructions. Supplier shall be liable for damage incurred by us because Supplier packaged or labelled the goods improperly or contrary to our instructions, except where Supplier is not responsible. 

4.2 Unless otherwise agreed or indicated in the order, our domicile at 80639 Munich, Friedenheimer Brücke 21, shall be the place of performance for all deliveries and payments. 

4.3 Unless agreed otherwise the deliverables will be shipped by the carrier UPS. For this purpose we will provide Supplier with our UPS customer number for the handling of the shipping, and will bear the shipping costs; the risk of accidental loss and accidental deterioration of the goods up to their delivery to us will be borne by Supplier also in this case. 

4.4 Shipping papers and invoices shall be enclosed with the shipments. All invoices have to be verifiable and indicate the value-added tax separately. 

4.5 Supplier is obliged to forward to us in due time all necessary statements about the origin of the goods for customs purposes. If Supplier is domiciled abroad or imports goods, Supplier shall be responsible for the accuracy of the declaration of the goods. Where required, Supplier will prove his statements about the origin of the goods by an information sheet confirmed by Supplier’s customs office. In any event of Supplier’s fault, Supplier shall be liable for all disadvantages we sustain by an improper or late Supplier statement. 

5. Safety standards, documentation, marketability/remaining shelf-life of goods 

5.1 Supplier will observe the protective laws and other safety regulations applicable to the deliverables, e.g. requirements imposed by the industrial supervisory office, accident prevention rules of employers’ liability insurance associations. Supplier will apply for any necessary permits and file the required notifications with the authorities. Supplier shall enclose all necessary inspection certificates, permits and attestations with the deliveries without further request. 

5.2 Unless agreed otherwise and subject to the provisions of section 5.3, Supplier guarantees the marketability of the goods, in particular of pharmaceuticals, in Germany. 

5.3 In the case of individual deliveries of pharmaceuticals not approved or registered in Germany, which are not released from approval or registration, Supplier guarantees that the pharmaceuticals are approved for marketing in the exporting country, unless agreed otherwise. 

5.4 Without prejudice to any further rights, Supplier shall indemnify us against all claims of third parties based on a breach of Supplier’s duties laid down in sections 5.1 to 5.3 except where Supplier is not responsible for the breach of duty. 

5.5 Unless otherwise agreed or indicated in the order, all goods having a limited shelf-life, in particular but not limited to pharmaceuticals, at the time of receipt by us must have a customary remaining shelf-life but at least a remaining shelf-life of 12 months. If Supplier is unable to fulfil this obligation Supplier, without prejudice to his potential liability, will inform us without delay. Without prejudice to any further rights, we may return to Supplier any goods having an insufficient remaining shelf-life at Supplier’s risk and expense and demand immediate delivery of due and proper goods. 

6. Prices, shipping costs, payment, right of retention, setoff, no assignment, reservation of title, processing 

6.1 Unless agreed otherwise the agreed prices are deemed fixed prices inclusive of packaging and statutory value-added tax, where applicable. Where any prices are agreed exclusive of packaging, packaging will be billed at cost price. Where it has been agreed that we shall bear the shipping costs and shipping is not effected through UPS in accordance with section 4.3 and we have not defined any specific mode of transportation, Supplier shall choose the most economic mode of transportation. 

6.2 Unless agreed otherwise all payments will be made by bank transfer or check within 30 days of delivery of the goods and receipt of a due and proper invoice in accordance with section 4.4. Invoices failing to comply with the specifications may be rejected by us. In any such case the date of receipt of the new, due and proper invoice will determine the beginning of the term for payment. In the event of early delivery, the term “delivery” as used above in this section 6.2 shall be replaced by the agreed delivery date. 

6.3 We are entitled to rights of setoff and retention towards Supplier to the extent defined by the law. 

6.4 Without prejudice to the provision of Sec. 354 a German Commercial Code (HGB) Supplier is not entitled to assign, have collected by third parties, or pledge his claims against us without our express consent. This shall not apply if and to the extent that Supplier has granted his supplier an extended reservation of title in the regular course of business. Supplier will immediately notify us in the event of an attachment of any claims. 

6.5 The title to the delivered goods will pass to us at the latest upon payment. We will not accept any expanded or extended reservation of title. 

6.6 Within the limits of the ordinary course of business, we will be entitled to process, sell or otherwise dispose of the delivered goods, even before the passing of title. 

7. Defects, warranty 

Our duties to notify defects and our warranty claims are governed by the statutory provisions as amended by the terms and conditions set out below: 

7.1 Obvious defects in the delivered goods shall be reported to Supplier by us at the latest 14 days after delivery, and any concealed defects at the latest 14 days after their discovery. 

7.2 Any payments towards the purchase price made prior to the establishment of any defects or the acceptance of the goods will not be deemed an acknowledgement that the goods are free from defects and will not release Supplier from his liability for defects. 

7.3 Supplier will bear all expenses incurred in connection with the establishment and removal of defects, including expenses incurred by us. 

7.4 Unless agreed otherwise and subject to sections 7.5 and 7.6 below, the warranty claims for deliveries and services of Supplier will become time-barred 36 months after delivery of the goods to us. 

7.5 Subject to section 7.6, the limitation period in the case of replacement or subsequent delivery for purposes of supplementary performance, will be 36 months from the fulfilment of the duty of supplementary performance. This shall apply only if supplementary performance was made by express or implied acknowledgement of the duty to remedy defects and not, for example, as a gesture of goodwill or in the interest of the continued business relationship. 

7.6 Nothing in this shall affect the statutory provisions on the limitation of recourse claims within the supply chain. 

8. Liability, limitation of claims 

8.1 Except as set out otherwise in these Terms and Conditions of Purchase, Supplier’s liability and the limitation of our claims are governed by the statutory provisions. 

8.2 In any case of product or pharmaceutical liability Supplier will, without prejudice to any further rights, indemnify us against third party claims to the extent that the cause lies within Supplier’s sphere of control and organisation and Supplier is liable in the external relationship. The indemnification also extends to expenses we were reasonably justified to incur and did incur in order to identify, avoid and/or reduce the risk of liability. 

9. Property rights, confidentiality 

9.1 Supplier shall be liable for claims arising from any infringement of patents, copyrights, trademark rights, name rights and other intellectual property rights and applications for intellectual property rights (jointly the “Property Rights”) by the contractual use of the delivered goods. Supplier will indemnify us against all claims of third parties arising out of the use of such Property Rights, unless Supplier is not responsible for the breach. Supplier’s duty of indemnification also relates to all expenses reasonably incurred by us out of or in relation to any such third party claims, in particular but not limited to the costs of legal defence. If any claims are raised against us based on an infringement of Property Rights Supplier is responsible for, Supplier will be obliged to support us in the legal defence at Supplier’s expense. 

9.2 The contracting parties will treat as a business secret all non-public commercial and technical details which they come to know in connection with the business relationship. Supplier’s sub-suppliers and employees will be subjected to the same undertaking. 

10. Security Declaration

10.1 If Supplier has neither applied for an AEO certification nor already holds the status of an Authorised Economic Operator, Supplier declares and warrants that

(i) goods which are produced, stored or transported by our order or which are delivered to us or taken for delivery from us are produced, stored, prepared and loaded in secure business premises and secure loading and shipping areas and are protected against unauthorized interference during production, storage, preparation, loading and transport, 

(ii) reliable staff is employed for the production, storage, preparation, loading and transport of these goods, and 

(iii) subcontractors acting on behalf of Supplier are informed that they also need to ensure the supply chain security as mentioned above.

10.2 Upon our request, Supplier shall without delay either provide proof of the AEO F or AEO S certification or send us a security declaration signed as mentioned above signed by Supplier. 

11. Governing law, place of jurisdiction, arbitration 

11.1 German law with the exclusion of the UN Sales Convention applies. 

11.2 The exclusive place of jurisdiction for any and all disputes arising out of or in connection with the contract entered into between Supplier and us – including actions based on checks or bills of exchange – shall be our domicile if Supplier is a merchant or legal person under public law or is not domiciled in Germany. However, we are also entitled to sue Supplier at any other legal place of jurisdiction or – instead of filing a lawsuit with an ordinary court of law – to initiate arbitration proceedings in accordance with sec. 11.3 below. 

11.3 In the event of an arbitration proceeding all disputes will be decided with final effect under the Arbitration Rules of the German Institution of Arbitration (Deutsche Institution für Schiedsgerichtsbarkeit e.V. – DIS) while recourse to the ordinary courts of law is excluded. The forum of arbitration will be our domicile. The arbitration panel will be composed of three arbitrators if the value in dispute exceeds EUR 100,000, and of one arbitrator in all other cases. The language of arbitration proceedings will be German. 

 

Status: May 2018