Summary of General Terms and Conditions

Only the German version is legally valid

 

I. Scope of Application

 

a) These General Terms and Conditions shall exclusively govern the sale of goods for the pharmaceutical and nutraceutical sector (hereinafter referred to as the „Goods“) as well as the provision of services, unless otherwise agreed in writing between the contracting parties.

The customer’s General Terms and Conditions shall only apply insofar as Vivatis has expressly agreed to them in writing. Any reference by the customer to its General Terms and Conditions is hereby expressly rejected.

b) These General Terms and Conditions shall apply only to companies duly incorporated under the laws of the country in which they have their principal place of business.

 

II. Offers and Conclusion of Contract

 

a) Offers are non-binding.

b) Contracts and orders are concluded by mutual declarations through the customer’s purchase order (offer) and the Vivatis’ corresponding written order confirmation (acceptance). Should the order confirmation deviate from the purchase order, Vivatis shall be deemed to have made a new offer in accordance with the German Civil Code (BGB).

 

III. Purchase Price / Price Increases

 

a) The purchase price shall be calculated considering volume, quantities, and transport of the goods determined at the place of dispatch. Vivatis‘ prices are subject to statutory value added tax.

b) Should new public charges/duties relating to the import or distribution of the goods be introduced or should existing charges or freight costs increase between the time of conclusion of the contract and delivery, Vivatis reserves the right to adjust the purchase price accordingly.

 

IV. Payment

a) The purchase price shall be payable net cash when due in accordance with the order confirmation. Payment periods shall generally commence on the date of the invoice, unless otherwise agreed between the contracting parties. If the agreed payment deadlines are exceeded, the customer shall be in default of payment even without a reminder. The right to claim interest on arrears or damages in accordance with the statutory provisions shall remain reserved.

b) In the event of justified doubts concerning the customer’s ability to pay, in particular in the event of delay payment, Vivatis shall be entitled to revoke the agreed payment terms and to demand advance payment or securities for further deliveries.

c) Furthermore, in the event of late payment, Vivatis shall also be entitled to demand non-performance of the contract and to suspend further performance of the service until full payment has been made. In addition, Vivatis may unilaterally terminate the contract in writing if payment has not been received within ten (10) days of the commencement of the default in payment. Other statutory claims for damages shall remain unaffected.

d) The purchase price payment shall be deemed to have been made in full when the entire amount of the respective invoice is finally available on one of the Vivatis’ business accounts.

 

V. Delivery and Transfer of Risk

 

a) The delivery obligation is subject to correct and timely delivery to Vivatis.

In addition, the delivery shall be carried out as contractually agreed. The therein agreed INCOTERMS shall apply in their respective current version.

b) Partial deliveries are authorized. Short or excess deliveries of up to +- 5% of the contractually agreed quantity are allowed.

c) In the event of a delay in delivery, Vivatis shall inform the customer immediately and agree a reasonable extension period.

d) In case no INCOTERMS were agreed between the parties, the risk shall pass to the customer upon the goods have been handed over to the carrier. In the event that the goods are collected by the customer the risk shall pass to the latter when the goods are made available. The above shall also apply if Vivatis bears the transportation costs.

e) Upon delivery of the goods, the customer shall be required to promptly inform the transport company immediately of any visible transport damage and/or shortages and to document these clearly on the enclosed delivery bill. Further obligations on the part of the customer in the event of defects shall be governed by clause VII. of these General Terms and Conditions.

 

VI. Samples / Technical advice

a) The samples provided by Vivatis as well as the technical and chemical product specifications have been provided carefully and to the best of Vivatis’ knowledge and are intended solely as a general description of the goods.

b) Services, as well as details and information provided by Vivatis on the suitability and use of the goods shall not release the customer from the obligation to carry out the legally prescribed examinations and tests for the respective individual purposes without restriction.

c) The customer is solely responsible for compliance with all applicable laws and regulations when using the goods.

 

VII. Quantity and Quality Claims / Warranty

a) Defects that can be identified during the incoming goods inspection (any packaging defects, incorrect deliveries and/or quantity deviations) in the customer’s area of responsibility must be duly reported in writing without delay within ten (10) working days upon receipt, unless agreed otherwise by the parties. In the case of partial deliveries, this obligation shall apply to each individual partial delivery.

b) Any statutory quality analysis must be carried out within thirty (30) working days of receipt of the goods. Any defects found out therein shall be notified to Vivatis within five (5) working days of receipt of the results, unless otherwise agreed by the parties.

c) Hidden defects must be reported by the customer within ten (10) days after discovery of the defect, limited by the shelf life of the goods, unless otherwise agreed.

d) A complaint shall not entitle the customer to withhold any due payments or to refuse to accept further deliveries.

e) If the goods are defective and the customer has duly notified Vivatis of this in accordance with clause VII., the customer shall be entitled to the statutory rights of subsequent performance subject to the following conditions. Vivatis shall have the right, at its own discretion, either to remedy the defect or to replace the goods with goods free of defects. Should the subsequent performance fail or be dispensable for legal reasons, the customer may, either withdraw from the contract or be entitled to a reduction in price. Claims for damages in accordance with clause IX. remain unaffected.

f) The warranty period shall be one year after dispatch of the goods, unless mandatory statutory provisions prescribe a longer limitation period. In addition, there shall be no claims for defects or consequential claims for defects if the defects are attributable to subsequent improper modifications to the goods or to incorrect documentation, including incorrect storage or information provided by the customer.

g) Vivatis does not warrant that the product is free from patents or other industrial property rights of third parties.

 

VIII. Compliance with Legal and Official Regulations

 

The customer is responsible for compliance with statutory provisions and official regulations regarding import, transportation, storage, and use of the goods.

 

IX. Damages / Limitation of Liability

 

Vivatis shall be liable for damages in accordance with the statutory provisions and the following provisions: (i) in the event of simple negligent breach of material contractual obligations, Vivatis‘ liability shall be limited to compensation for typical, foreseeable damages; (ii) in the event of simple negligent breach of secondary obligations, Vivatis‘ liability shall be excluded; (iii) the above limitations of liability shall not apply to damages resulting from injury to life, body or health.

 

 

X. Retention of Proprietary Rights

a) The delivered goods shall remain the exclusive property of Vivatis until full payment of all claims (including ancillary claims, claims for damages and claims arising from checks and bills of exchange) arising from the business relationship with the customer.

b) Should the goods subject to retention of title be processed, Vivatis shall be deemed to be the manufacturer and shall acquire ownership of the newly created products free of charge. In the event that the goods subject to retention of title are processed, combined or mixed with goods owned by third parties, Vivatis shall acquire co-ownership of the resulting products in proportion to the invoice value of the other materials. If the goods subject to retention of title are processed, combined, or mixed with a main item owned by the customer, the customer hereby assigns his ownership rights to the new item to Vivatis.

c) The customer hereby assigns to Vivatis in full all claims arising from the sale of goods owned or co-owned by Vivatis as security for Vivatis’ share of ownership. Any other assignment, including in the context of a factoring transaction, shall not be permitted.

d) The customer shall be obliged to store the goods subject to retention of title at its own expense with the care of a proper businessman and to insure them against the usual storage risks. Furthermore, the customer hereby assigns its claims under the insurance contracts to Vivatis.

e) As long as the customer fulfils its contractual obligations towards Vivatis, it shall be entitled to dispose of the goods subject to retention of title in the ordinary course of business and to collect claims arising from the resale of the goods subject to retention of title. However, the buyer shall not be entitled to pledge the reserved goods or the assigned claim to third parties or to transfer them as security. The customer shall notify Vivatis in writing of any access by third parties to the goods subject to retention of title or the assigned claims immediately after becoming aware of them.

f) In the event of delay payment by the customer, Vivatis shall be entitled to demand the return of the goods subject to retention of title without setting a grace period and without withdrawing from the contract. In addition, the customer shall provide Vivatis upon request, all necessary information and documents concerning the inventory of the goods subject to retention of title and the assigned claims and shall notify its customers of the assignment of claims without delay.

g) If the value of the securities exceeds the sum of Vivatis‘ claims by more than 20%, Vivatis shall release the excess securities at the customer’s request at Vivatis‘ discretion.

 

XI. Force Majeure / Obstacles of Delivery

Events and circumstances beyond Vivatis‘ control and for which it is not responsible (nature disasters, war, labor disputes, energy and raw material shortages, fires and explosions as well as epidemics and pandemics, and other cases of force majeure) – even if they occur at the supplier’s premises – shall release Vivatis from ist obligation to perform for the duration of the disruption and the extent of its effects. In the event of partial or complete loss of Vivatis‘ source of supply, Vivatis shall not be obliged to purchase from other alternative suppliers.

Should these Force Majeure events last longer than three (3) months, either party shall be entitled to withdraw from the contract by written declaration.

 

XII. Final Provisions

a) The place of jurisdiction is the registered office of Vivatis Pharma GmbH (Hamburg). The law of the Federal Republic of Germany shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

b) Should any of the above terms and conditions be declared invalid in whole or in part, this shall not affect the validity of the remaining terms and conditions. In this case, Vivatis shall be entitled to replace the invalid provision with another provision that comes closest to the economic purpose of the invalid provision and shall be effective.