1.1 The following Terms and Conditions of Sale and Delivery shall apply to all - including future - deliveries to our customers. By placing an order or accepting goods, the General Terms and Conditions shall be deemed to have been accepted. General terms and conditions of our customers shall only apply if we expressly agree to them in writing.
1.2 We are authorised to amend the Terms and Conditions of Sale and Delivery. Amendments shall take effect from the date of their validity if our customer does not object within a period of 6 weeks after notification of the amendment. We shall expressly point out this consequence to our customer upon notification of the change.
1.3 Future verbal collateral agreements must be made in writing to be effective, unless they are based on an individual contractual agreement. This also applies to the amendment or cancellation of this written form clause.
1.4 When operating a pharmaceutical wholesale business or a pharmacy, the customer and its employees must comply with legal requirements, in particular the wholesale licence and the Pharmacy Act, the Pharmacy Operating Regulations and the respective professional regulations of the relevant state chamber of pharmacists. We respect the customer’s pharmaceutical independence and professional responsibility in healthcare when making purchasing and dispensing decisions. Conditions and services that are owed on a contractual basis do not affect the pharmaceutical independence of our customers.
2.1 Unless expressly stated in writing, our offers are always subject to change and non-binding. The contract is only concluded when we confirm the order or send the goods.
2.2 Orders can be placed by e-mail, EDI, fax, telephone and letter/post. The relevant contact details can be found on our homepage (www.phoenixpharma-einkauf.de).
2.3 The acceptance of deliveries by our customer is a primary obligation.
2.4 In the case of narcotics, hazardous substances, poisons and other substances whose supply or use is subject to special statutory or official regulations, our customer's order shall also be deemed to be a declaration that these substances are used for a permitted purpose within the meaning of these statutory or official regulations, in particular that the purchase is not unlawful.
3.1 Our order confirmation alone shall be decisive for our delivery. We are authorised to make partial deliveries.
3.2 Delivery is subject to timely and correct delivery to us. If a delivery date is not met for reasons for which we are responsible, the customer must set us a reasonable period of grace in writing, unless this is dispensable in exceptional cases. If the deadline expires without result, the customer shall only be entitled to withdraw from the contract. This shall not apply if there are claims for compensation for damages by our customer due to a slightly negligent breach of obligations, the fulfilment of which is essential for the proper execution of the contract and on the observance of which our customer may regularly rely (hereinafter referred to as "essential contractual obligations"). In this case, compensation shall be limited to the foreseeable damage typical of the contract.
3.3 All cases of force majeure, strike, lockout, official measures and similar hindrances for which we are not responsible shall entitle us to postpone delivery to a reasonable extent and for a reasonable period of time, at least for the duration and scope of such hindrances. In such cases, our customer shall have no rights or claims due to late delivery. If the aforementioned circumstances lead to a final impediment to performance, we shall be entitled to withdraw from the contract.
3.4 Dispatch is always at the customer's risk. Pharmaceutical regulations remain unaffected. The goods shall only be handed over against confirmation of receipt by our customer or a person authorised by the customer.
3.5 Our customer must notify us immediately of any change of name and/or address. Furthermore, our customer must notify us immediately if his operating licence expires, in particular if it is revoked.
4.1 The commercial inspection and complaint obligations shall apply. The defective delivery items must be documented in writing in the condition in which they are at the time the defect is discovered and kept ready for inspection and/or collection by us. In the event of the delivery of medicines not ordered, clause 7.3 shall also apply; the necessary confirmation, including proof of proper storage in accordance with clause 7.3, shall be sent by us on request. If the medicinal product returned in this respect triggers an error message in accordance with Article 11 of Delegated Regulation (EU) 2016/161, Section 7.4 shall apply accordingly.
4.2 If the delivery item is defective, we shall, at our discretion, deliver defect-free goods or remedy the defect. If this subsequent fulfilment fails, our customer may, at his discretion, withdraw from the contract or demand a reduction in price.
5.1 Unless otherwise agreed or stated, prices shall be calculated at the prices valid on the day of the order plus the statutory value added tax applicable on the day of delivery. We reserve the right, after timely notification of the customer and prior to delivery of the goods, to increase the price of the goods to the extent necessary due to general price developments beyond our control (such as price increases of manufacturers' products, availability) or due to changes in delivery dates.
5.2 Packaging shall be carried out with care. However, claims for compensation of any kind due to defective packaging are excluded.
5.3 The consignments shall be delivered using the most cost-effective shipping route of our choice. A special shipping method is possible at the customer's request. Fees for special and courier journeys shall be charged at cost (in addition to any dispatch or special charges). The customer is free to collect consignments himself by prior arrangement.
5.4 Payments shall be made free of charge, unless otherwise agreed or stated on the invoice. Invoices are due 30 days after the invoice date without deduction, unless a different due date is stated on the invoice. A discount of 1.5% shall be granted for payment by day 10 after the invoice date. The date of receipt of payment by us shall be decisive.
The total discount amount to be deducted from the invoice amount for RX finished medicinal products to public pharmacies resulting from the granting of the discount is calculated from the sum of the discount amounts granted for each individual item of this invoice. A maximum discount of € 37.80 shall be deducted from the net invoice amount for each individual item. Means of payment other than bank transfers shall be accepted subject to reservation and shall only be credited with the amount resulting after deduction of all costs/expenses to be borne by the customer. Offsetting against our claims is only permitted with undisputed or legally established claims; this restriction does not apply to counterclaims arising from the specific contractual relationship.
5.5 In principle, an original invoice is included with every consignment of goods. Our customer revocably agrees that we may send him our invoices in electronic form in pdf format if required. Our customer can revoke his consent at any time by written declaration to us. He is advised that he himself is responsible for GoBD-compliant storage.
5.6 Our invoices shall be deemed accepted if they are not objected to within four weeks of receipt.
5.7 In the event of default in payment, we shall charge the default interest to which we are entitled in compliance with the statutory requirements. In addition, we are entitled to demand the statutory lump sum of € 40.00 in the event of late payment.
5.8 We give all customers the option of paying by SEPA Business Direct Debit Mandate to ensure that discounts are utilised. The prerequisite for the granting of a discount is an early payment (the receipt of the payment by us is decisive). As long as our customer is in arrears with payment obligations to us, or if we only supply our customer against advance payment, no discount shall be granted.
5.9 Assignments shall be accepted on account of fulfilment. All costs incurred by us as a result shall be borne by our customer.
5.10 If we become aware of payment difficulties of our customer, e.g. application for the opening of insolvency proceedings or rejection of the application for the opening of insolvency proceedings, submission of an affidavit etc., or if there is reason to assume for other reasons that our customer is no longer in a position to fulfil his obligations, we shall be entitled to demand payment for goods already delivered even before the due date, to revoke the deferral of claims or to make use of our rights under clause 6. Furthermore, in the event of payment difficulties on the part of our customer, we reserve the right to deliver only against advance payment.
6.1 The goods delivered by us shall remain our property until complete fulfilment of all - including future - obligations arising from the business relationship with our customer (in the case of pharmacies, this means: business relationship with all pharmacies managed by the customer) our property (hereinafter referred to as "reserved goods").
6.2 Our customer is revocably authorised to process, combine or mix the reserved goods in the ordinary course of business. Our customer shall carry out the treatment or processing of the reserved goods on our behalf. Our customer shall indemnify us against any liability arising from the treatment or processing, in particular from third-party claims. In the event of processing, combining or mixing with goods that are not our property (hereinafter referred to as "third-party goods"), we shall acquire co-ownership of the new item at the time of processing, combining or mixing in the ratio of the value of the goods subject to retention of title to that of the third-party goods. If our customer acquires sole ownership of the new item, we are in agreement with him that he hereby transfers co-ownership to us in the aforementioned value ratio. The new item shall be deemed to be reserved goods within the meaning of clause 6.1 and shall be stored by our customer for us free of charge.
6.3 Our customer is authorised to sell the reserved goods in the ordinary course of business. He hereby assigns to us by way of security the claims against third parties to which he is entitled from the resale of the reserved goods. In the event of the sale of goods processed, combined or mixed with third-party goods, our customer shall assign the claim to which he is entitled in the amount corresponding to our co-ownership share. If our customer sells goods subject to retention of title together with third-party goods, the purchase price claim shall be deemed assigned in the amount of the value of the goods subject to retention of title. We accept these assignments. Our customer is authorised to collect the claims for our account.
We may revoke the authorisations in accordance with clause 6.3 sentences 1 and 7 if our customer does not properly fulfil its contractual obligations. If the claims assigned to us by way of security are disputed by the third-party debtor or are not fulfilled for other debtor or are not fulfilled for other reasons, our customer shall collect the assigned claims at our expense:
6.4 The transfer of claims to a current account, the balancing and the acceptance of the balance shall not affect the agreed retention of title or the assignment of claims. They then serve to secure our balance claim.
6.5 If the value of the securities obtained through the extended reservation of title and the assignment of claims exceeds our claims by more than 10%, we shall release the excess part of the securities at the request of our customer, whereby we shall be entitled to select the goods or claims to be released.
6.6 We may revoke the authorisation to process, combine or mix with third-party goods, to collect receivables or to sell goods subject to retention of title in the ordinary course of business if our customer culpably fails to meet its payment obligations.
6.7 The encumbrance of the goods subject to retention of title with third-party rights, in particular pledging and transfer by way of security to third parties, requires our prior written consent.
6.8 Our customer must notify us immediately if our rights to the goods subject to retention of title are impaired or jeopardised by enforcement measures or other third-party measures. He must inform the third party of our rights in good time. The same shall apply if claims assigned to us are impaired by seizure or other third-party measures.
6.9 Upon cancellation in accordance with clause 6.6, we shall be entitled to remove the reserved goods subject to retention of title from the possession of our customer and to take them or have them taken to another location. For this purpose, we are in particular authorised to enter our customer's property and buildings.
7.1 There is no obligation to take back or exchange goods - beyond the statutory warranty rights - unless otherwise stipulated below. Returns of goods that have only been duly delivered by us and are free of defects shall be accepted and processed in accordance with the applicable returns regulations of the respective pharmaceutical company. These returns regulations are to be investigated by our customers in advance on their own responsibility. A return must be notified in writing in advance. The return must be accompanied by: PZN (pharmacy central number), batch and original proof of delivery/copy of invoice from PHOENIX Pharma-Einkauf GmbH.
7.3 We will only take back goods that are marketable in terms of product-specific reulations, particularly law provisions, with special consideration of Section 7b paragraph (2) of the Ordinance on Wholesale and the Brokering of Medicinal Products (Arzneimittelhandelsverordnung), have been purchased from pharmaceutical wholesalers and have been properly stored and handled since delivery, in particular have not left our customer's area of responsibility, are in their original containers and are in proper condition, there are no circumstances indicating that the returned goods are counterfeits, in particular not counterfeits within the meaning of the German pharmaceutical law, and our customer confirms this to us upon return in the form required by the Ordinance on Wholesale and the Brokering of Medicinal Products.
7.4 If, contrary to the customer's declaration pursuant to clause 7.3, an error message is triggered during the verification of the unique identifier of a medicinal product returned by the customer pursuant to Article 11 of Delegated Regulation (EU) 2016/161, the medicinal product is presumed to be non-marketable and may be suspected of being falsified. In this case, the medicinal product is placed in quarantine and can only be returned to the customer after approval by the competent supervisory authority. A credit note cannot be issued unless the customer can eliminate the cause of the error message in good time within the relevant period, in particular to reactivate the status of a previously deactivated medicinal product in accordance with Article of 13 Delegated Regulation (EU) 2016/161, for which the customer bears sole responsibility. PHOENIX Pharma-Einkauf is not responsible for ensuring that the customer is able to eliminate these causes in good time. Any destruction costs incurred as a result of non-reactivation or late reactivation of previously deactivated returned medicinal products shall reimbursed to PHOENIX Pharma-Purchasing by the customer.
7.5 The return shipment shall be at the expense and risk of the customer.
Our liability for damages - irrespective of the legal grounds - is excluded in the event of slight negligence on our part or on the part of our vicarious agents. This exclusion of liability shall not apply in the case of quality agreements relating to the damage caused by defects and/or consequential damage caused by defects, the occurrence of which the quality agreement was intended to protect against; guarantees, claims under the Product Liability Act, injury to life, limb or health; initial incapacity; impossibility for which we are responsible and culpable breach of a material contractual obligation. In the event of initial incapacity, impossibility for which we are responsible and culpable breach of a material contractual obligation, liability shall be limited to the foreseeable, typically occurring damage. Otherwise, we shall be liable in accordance with the statutory provisions.
9.1 The following conditions apply to data processing in which we process personal data of customers, their contact persons and employees (hereinafter referred to as "data") as the controller. The customer remains responsible for compliance with the applicable data protection regulations.
9.2 We process data in accordance with applicable law, in particular in compliance with European data protection regulations (GDPR) and national regulations (e.g. BDSG as amended). We oblige all subcontractors who process data on our behalf to also comply with these provisions. In some cases, data is also processed in countries outside the European Union or the European Economic Area. In these cases, we ensure that an adequate level of data protection is guaranteed for this data, e.g. through contractual agreements with our contractual partners and, if necessary, additional measures.
9.3 To the extent permitted without consent, we contact our customers for marketing purposes and to submit offers via various communication channels (e.g. telephony, e-mail). The customer has the right to object to this processing at any time with effect for the future (see the link under clause 9.7 for further information).
9.4 In order to establish and conduct the business relationship, we may transmit data for creditworthiness and credit checks to Creditreform Mannheim Dangmann KG in Mannheim, First Debit GmbH in Hamm or other credit agencies for the purpose of establishing and conducting the business relationship. The purpose of this is, among other things, to be able to assess the risk of payment defaults in individual cases.
9.5 In accordance with legal requirements, we are authorised to transfer data to affiliated companies of the PHOENIX group within the meaning of the German Stock Corporation Act for internal administrative purposes. Data may also be passed on to third parties (e.g. lawyers, auditors, banks, insurance companies, law enforcement authorities, etc.) if there is a legitimate interest or a legal obligation exists. Furthermore, we may pass on data to third parties if this is necessary for the fulfilment of the contract (e.g. agreements on terms and conditions, participation in promotions, conclusion of contracts or similar services offered by us together with partners).
9.6 To the extent permitted by law, data is analysed and evaluated for target group orientation, offer and price optimisation. The focus is on analysing aggregated data.
9.7 We train and obligate employees to comply with data protection requirements. Technical and organisational measures for the security of processing are in place and can be viewed. Further information on the processing of personal data, a list of the rights of data subjects and contact details can be found at www.phoenixpharma-einkauf.de/de/datenschutzerklaerung .
Our customer shall comply with the requirements of the competition regulations and anti-corruption legislation applicable to it. The fulfilment of the contract by us is subject to the proviso that there are no obstacles to fulfilment due to trade sanctions. We check our contractual partners against selected sanctions lists. Our customer further undertakes not to violate the applicable trade sanctions and to refrain from any actions that could give rise to potential liability on our part with regard to existing trade sanctions. Our customer shall notify us immediately at any time if circumstances come to its knowledge which are contrary to the provisions of this clause. Non-compliance with the above provisions constitutes a material breach of contract. We reserve the right to terminate the contract or the business relationship as a whole without notice and/or to refuse performance if the customer breaches these provisions. In the event of termination or refusal of performance for the aforementioned reasons, the assertion of a claim for damages or the assertion of other rights by our customer due to the termination or refusal of performance is excluded. Delays due to any authorisation procedures shall suspend deadlines and delivery times.
The place of fulfilment for both contractual partners is Mannheim. The place of jurisdiction for all disputes arising from the delivery shall be Mannheim.
This English translation of the Terms and Conditions (Verkaufs- und Lieferbedingungen) is provided for convenience and better understanding only. In the event of any discrepancies or doubts regarding interpretation, the German version shall prevail.