GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY OF G. POHL-BOSKAMP GMBH & CO. KG (October 2022) 

1. General Terms
1.1 The following general terms and conditions of sale shall apply to all offers, deliveries and services by G. Pohl-Boskamp GmbH & Co. KG (the “Seller”) to entrepreneurs, legal entities under public law or special governmental estates (the “Buyer”) and agreements in connection therewith. They shall apply for the entire duration of the contractual relationship even if not expressly referred to individually.
1.2 Differing, contrary or complementary general terms and conditions of the Buyer shall not apply unless expressly accepted by the Seller in writing. The Seller’s general terms and conditions of sale shall also apply if the Seller performs delivery despite his knowledge of differing or contrary terms even if not explicitly rejected. All agreements between the Seller and the Buyer including without limitation supplements to or amendments of existing agreements shall be in writing.
1.3 The Buyer may not assign his claims against the Seller to a third party without the Seller’s prior and express consent. Section 354a of the German Commercial Code shall remain unaffected.
1.4 Products in packing for hospital use are exclusively delivered to hospital pharmacies and pharmacies supplying hospitals on presentation of a current hospital supply contract. The Buyer ofproducts in packing for hospital guarantees to use the products exclusively in the hospital sector. A resale of products in packing for hospital use or parts thereof is forbidden
1.5 Should any provision of these general terms and conditions of sale be invalid, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a customary provision in this industry. In case of absence of a valid customary provision the respective statutory provision shall apply.

2. Offer and Acceptance
2.1 The Seller’s offers are subject to change with regard to quantity, price and delivery period. No purchase order shall be binding on the Seller, unless otherwise agreed, until acceptance by means of an order confirmation or delivery.
2.2 Employees or representatives of the Seller are not allowed to make oral promises, assurances or supplemental agreements or enter into oral agreements regarding the modification of an agreement. Such are only valid, if made in writing.

3. Prices and Payment
3.1 All prices include packaging and are exclusive of the respective statutory VAT.
3.2 Cheques are accepted only on account of performance.
3.3 No offset or retention may be claimed by the Buyer unless the Buyer’s counterclaim is acknowledged, undisputed or assessed in a legally binding judgment.
3.4 The Seller’s payment claims are due and payable within 14 days with 2 % discount or within 30 days without discount from the date of invoice (in case of partial delivery on a pro-rata basis). From the due date and receipt of invoice the Seller may claim maturity interest in the amount of 5 % p.a. In case of default, the Seller may claim default interest in the amount of nine percentage points above the base rate of interest p.a. In case of demonstration of further damages caused by default, the Seller may claim such further damages. Further rights of the Seller in case of Buyer’s default shall be governed by the statutory provisions.
3.5 The Seller reserves the right to send the invoice by post to the Buyer's address or electronically to an e-mail address of the Buyer known to the Seller. The Buyer agrees to the electronic invoicing. The electronic invoice shall be deemed to be received when the Buyer receives the e-mail to which the electronic invoice is attached. The Buyer may withdraw his consent to the electronic invoicing at any time. A change in the e-mail address used for electronic invoicing shall be notified to the Seller without undue delay.
3.6 In the event that Buyer is in default with payment obligations, Buyer suspends payments or in the event of any other circumstances which question the Buyer’s creditworthiness, Seller shall be entitled to declare all outstanding amounts due and payable with immediate effect.
3.7 The Buyer may authorize the Seller to collect outstanding amounts by means of direct debit. In that case, the Buyer issues a respective direct debit mandate to the Seller. The collection via direct debit takes place 2 bank working days from the date of invoice with a discount of 3 %. Furthermore, in case of agreed payments via SEPA Direct Debit Core (“SDD Core”) or SEPA Direct Debit Business to Business (“SDD B2B”) and where the Buyer issued a respective SDD Core or SDD B2B mandate, the following shall apply: The impending direct debit collection will generally be announced by the Seller together with the invoice or by way of another agreed mode of communication at the latest 1 calendar day before maturity of the direct debit (“Pre-notification”). The Buyer is obliged to ensure sufficient funds on the bank account stated in the SEPA mandate, so that due amounts can be collected by the Seller. This obligation shall also prevail in those individual cases where the Buyer has not received the Pre-notification or not received such in time. The Seller reserves his right to invoice the Buyer for bank and service charges of return debit notes caused by insufficient funds on the Buyer’s account. Note: In individual cases the debited amount may differ from the amount of invoice or the amount informed in the Pre-notification, if the Buyer has received credit notes or partially cancelled orders between the date of invoice or mailing of the Pre-notification and due date.
3.8 The Seller has the right to demand advance payment for specific offers, deliveries, services.
3.9 Provided that the Buyer is in default with payment obligations for more than 2 weeks, Buyer suspends payments, an application for initiation of insolvency proceedings over the Buyer’s assets has been filed, the Buyer has initiated out-of-court proceedings to settle debts or any other circumstances exist which significantly reduce the Buyer’s creditworthiness, thus potentially placing the debt owed by the Buyer in jeopardy, the Seller shall be entitled to request security by way of advance payment or bank guarantee (at Buyer’s discretion) giving at least one week’s notice and refuse to perform further deliveries until such security has been provided. In the event that the reasonable notice period expires unsuccessfully, the Seller shall also have the right to rescind from that and other agreements and claim damages.

4. Delivery, Delivery Times, Passing of Risk, Damages of Transportation
4.1 Except as otherwise stated in the agreement or the order confirmation, free delivery to Buyer’s address is agreed for deliveries of at least 100,00 € net value inside of Germany.
4.2 Delivery schedules and deadlines confirmed by the Seller are nonbinding, unless otherwise expressly stated.
4.3 The compliance with delivery schedules and deadlines shall be conditioned upon the timely fulfillment of the Buyer’s contractual obligations. Delivery schedules begin after the clarification of all details concerning the execution of the order and receipt of all documents or other information to be provided by the Buyer and, if such is agreed, receipt of the down payment. The delivery schedule shall be deemed complied with if the merchandise leaves the factory or agreed-upon dispatch location on the agreed-upon date or dispatch readiness has been reported to the Buyer, but the merchandise cannot be dispatched on time for reasons the Seller is not responsible for. These provisions shall apply to delivery deadlines accordingly.
4.4 The delivery obligation shall be subject to complete, correct and timely arrival of merchandise at the Seller, if the Seller procures the merchandise in whole or parts from a third party, unless the nondelivery or delay was caused by events the Seller is accountable for.
4.5 Unexpected events beyond the Seller’s control (p. e. war, risk of war, armed conflict, insurrection, civil commotion, govern-mental interferences including currency and trade policy measures and cancellation of international treaties and free trade agreements and measures to protect public health, epidemics and pandemics, extreme weather conditions including storms, floods, fire, raw material scarcity, lack of power, and other interruptions beyond the Seller’s control) and strikes shall extend agreed-upon delivery schedules or deadlines by the amount of the time the interruption persists. This shall also apply if such events occur at the Seller’s supplier. This shall apply also if the Seller is already in default – in such case with regard to any set period of grace – or in the event that the circumstances causing the interruption were already in effect at the time the agreement was executed, albeit the Seller was not aware of them. The Seller will immediately inform the Buyer of such events when they occur. In the event that the delivery delays caused by such circumstances persist not only for a short time, both parties shall have the right to rescind from the agreement, in which case the Seller shall reimburse the Buyer for any payments made. The Buyer shall, however, be permitted to rescind only, if the Seller fails to respond to the Buyer’ request within a week whether the Seller intends to rescind from the agreement or deliver the merchandise within two weeks.
4.6 Even where a delivery time according to the calendar has been specified or it can be calculated by the calendar after a preceding event, default shall only occur after the Seller’s receipt of a reminder.
4.7 Mode of dispatch may be chosen by the Seller and on account of the Buyer. Packaging may not be returned. The Buyer’s obligation to bear the cost shall also include any additional transportation fees due to transportation difficulties, charges for unloading, any customs duties or standing times.
4.8 The risk of accidental loss or deterioration shall transfer to the Buyer upon handing over of the merchandise to the Buyer, freight carrier, shipper or any other – including the Seller’s own – forwarding agent. An insurance against transport damages will only be concluded upon the Buyer’s express written demand and on his account. In case of delay with shipment for reasons the Seller is not responsible for, the risk shall transfer to the Buyer upon notification that the merchandise is ready for dispatch.
4.9 Potential transportation damages must be reported to the Seller by the Buyer immediately, however, no later than one week after receipt of the merchandise, even if the Seller is not liable for transportation.
4.10 The Buyer shall not have the right to refuse reasonable partial shipments. The Buyer shall also be in default of acceptance if the delivery has merely been offered to the Buyer by the Seller and the other requirements for a default of acceptance are existent. Regarding deliveries on call the calling within the agreed period shall be understood as a contractual obligation.

5. Quality of Merchandise
Unless expressly identified as guarantees, any specifications relating to the merchandise shall be mere descriptions as to its quality.

6. Liability for Defects
6.1 The Buyer shall be required to inspect the goods immediately after delivery as far as this is feasible within the proper course of business and inform the Seller in writing of any detected defects. Hidden defects shall be reported in the same fashion immediately upon discovery. Failure to do so shall constitute unconditional approval of the products. Any complaint of the Buyer shall be in writing.
6.2 If the goods sold have been labelled with the safety feature of a ‘unique identifier’ allowing the verification of the authenticity and the identification of an individual pack of a medicinal product (“serialization”), any return claim is excluded once the ‘active status’ of a ‘unique identifier’ has been decommissioned.
6.3 In the event of alternative performance, the Buyer shall bear the additional expenses incurred due to the fact that the products have been transferred to another location than the place of fulfillment.
6.4 If the alternative performance fails, it is unacceptable to the Buyer, the Seller refuses to carry it out or it is delayed for an unreasonable period of time for which the Seller is responsible, the Buyer shall have the right to demand reduction of the purchase price or rescind from the agreement – irrespective of any damage claims.
6.5 Defects to partial deliveries shall only entitle the Buyer to rescind from the entire agreement if he demonstrably has no interest in the remaining partial deliveries.
6.6 As far as damage compensation is not involved, defect claims shall be subject to a statute of limitations of 12 months after passage of risk. This does not apply to intentional breaches of duty or breaches of guarantees.
6.7 In the case of a mandatory liability of the Seller within the entrepreneur’s recourse, the statutory provisions in Sections 445a, 478; 327t und 327u German Civil Code (BGB) shall prevail.
6.8 Damage compensation incl. compensation for futile expenses shall be governed by the following Section 7.

7. Damages
7.1 Damage compensation claims against the Seller or his assistants in performance shall be excluded in case of slight negligence with regard to non-essential obligations. With regard to other damage compensation claims based on an unintentional breach of non-essential obligations, the liability shall be limited to the foreseeable damage typically arising under such type of contract.
7.2 Any damage claims against the Seller or his assistants in performance shall be time-barred after one year in case of slight negligence
7.3 The aforesaid exclusions of and limitations on liability shall not apply to violations of guarantees or any injury of life, body or health.
7.4 The Seller shall not be liable for any public announcements by third parties about the quality of his goods, especially in advertising or labelling of such goods.
7.5 In the event that the Seller or his assistants in performance should be liable, based on mandatory provisions of the German Product Liability Act (ProdHG), for material or personal damage caused by a defect of a product, the provisions of the ProdHG shall prevail. Internal compensation under Section 5 sentence 2 of the ProdHG shall nonetheless be subject to the foregoing provisions.

8. Retention of Title
8.1 All goods delivered by the Seller to the Buyer shall remain the Seller’s property until payment of all receivables from the contractual relationship with the Seller. The adjustment of individual claims for current invoices or account balancing does not affect the retention of title.
8.2 The Buyer may resell goods subject to the above retention of title in the course of his ordinary business provided that the purchase price claim from the resale will pass over to the Seller as stipulated in Section 8.3.
8.3 The Buyer herewith assigns all claims from a resale of the goods subject to retention of title to the Seller as a security for the Seller’s receivables from the business relationship. The Seller accepts the assignment.
8.4 The Buyer shall be authorized to collect the assigned receivables from the sale of these goods on account of the Seller. The authorization of the Seller to collect such receivables shall remain unaffected thereby. However, the Seller shall not collect such receivables as long as the Buyer continues to properly fulfill all payment and other obligations.
8.5 The resale and/or collection authorization shall expire as soon as the Buyer is in default with payment obligations, applies for initiation of insolvency proceedings over his assets or a reason for insolvency prevails. Upon expiration of the resale and/or collection authorization, the Buyer shall, upon request by the Seller, be required to provide information on the assigned receivables and the debtors, any other information necessary for the collection of receivables, to hand over the respective documents and to notify the debtors of the assignment.
8.6 Upon expiration of the resale authorization, the Buyer shall, upon request by the Seller, be required to provide information on the inventory of reserved property and return such to the Seller, if so demanded. Section 449 para. 2 BGB shall not apply. To enforce his claim for return, the Seller shall, after prior notification and setting of a deadline, be authorized to enter the Buyer’s premises and to pick up the reserved property. Furthermore, the Seller may utilize the reserved property to satisfy his claims, as soon as the Seller has either rescinded from the agreement or the conditions for filing claims for damages due to non-fulfillment have been established. The execution of reserved property rights, in particular the return, seizure or utilization of reserved property, shall only be deemed an annulment of the agreement, if the Seller expressly declares so in writing.
8.7 The Buyer shall handle the reserved property with care and insure it reasonably at his own expense. Herewith the Buyer assigns compensation claims against any insurance company or other persons liable for compensation – possibly in part – to the Seller who accepts the assignment. The Buyer will immediately inform the Seller of any event of damage or loss.
8.8 In the event that the value of the existing security exceeds the secured claims by more than 10 %, the Seller shall, upon the Buyer’s request, be required to release exceeding security at the Seller’s discretion.

9. Place of Performance
Place of performance for all contractual obligations including liability for defects shall be the seat of the Seller.

10. Jurisdiction and Applicable Law
10.1 The contractual relationship shall be governed by the laws of the Federal Republic of Germany under exclusion of the conflict of laws rules and the UN Convention on the International Sale of Goods.
10.2 The sole place of jurisdiction, in the event that the Buyer is an entrepreneur, legal entity under public law or a special governmental estate, shall be Hamburg, Germany.