DFE PHARMAGENERAL TERMS AND CONDITIONS OF SALE
1.

Scope

1.1 The present general terms and conditions of sale(the "Conditions") apply to all supplies of
products (the "Goods") by DFE PHARMA GmbH& Co. KG ("DFE PHARMA") to its customers (the"CUSTOMER" or "CUSTOMERS").
1.2 Any general terms and conditions that deviate
from the present Conditions shall not become
binding on DFE PHARMA except when expressly
accepted by DFE PHARMA in writing. Any generalterms and conditions of the CUSTOMER are
expressly excluded as part of the contract
between DFE PHARMA and the CUSTOMER.
2.

Conclusion of Contract, Offers and Orders

2.1 Contracts between DFE PHARMA and the
CUSTOMER relating to the supply of Goods (a“Supply Contract”) shall be concluded inwriting or by email on the basis of quotations
and/or offers issued by DFE PHARMA or – in theabsence of a quotation or offer of DFE PHARMA on the basis of orders issued by the CUSTOMER
accepted by DFE PHARMA in writing or by email.
2.2 Quotations and offers for the supply of Goods
issued by DFE PHARMA shall be binding on DFE
PHARMA only for the validity period stated insuch quotation or offer, and shall only lead to abinding Supply Contract after DFE PHARMA’s
receipt of a proper declaration of acceptancesubmitted by the CUSTOMER to DFE PHARMA
within the validity period stated in DFE PHARMA’s
offer or quotation. If the validity period of DFE
PHARMA’s offer or quotation has expired at the
moment of DFE PHARMA’s receipt of adeclaration of acceptance submitted by the
CUSTOMER, a Supply Contract shall only beconcluded if DFE PHARMA has confirmed suchdeclaration to the CUSTOMER in writing.
2.3 If no validity period is stated in DFE PHARMA’s
quotation or offer, such quotation or offer shallbe non-binding for DFE PHARMA and subject toconfirmation in writing by DFE PHARMA after DFE
PHARMA’s receipt of a corresponding declarationof acceptance issued by the CUSTOMER.
Confirmation of CUSTOMER’s declarations ofacceptance with respect to non-binding
quotations or offers issued by DFE PHARMA shallbe at the discretion of DFE PHARMA.
2.4 CUSTOMER orders for the supply of Goods issued
by the CUSTOMER without prior quotation oroffer of DFE PHARMA shall be non-binding for
DFE PHARMA and subject to confirmation in© DFE PHARMA GmbH & Co. KG
General Terms of Sale
November 2020

writing or by email by DFE PHARMA.
Confirmation of CUSTOMER’s orders shall be at
the discretion of DFE PHARMA.
3.

Scope of Supplies, Changes and Product
Information

3.1 The items of Goods supplied are described in DFE
PHARMA’s offers or quotations that form thebasis of the Supply Contract.
3.2 Changes to the scope of supplies of GOODS or of
supply terms agreed under a Supply Contract,
including, without limitation, variations of thetype and quantity of GOODS ordered and/or ofscheduled delivery dates, shall be subject toconfirmation in writing or by email by DFE
PHARMA. Acceptance of change requests of the
CUSTOMER shall be at the discretion of DFE
PHARMA. Acceptance of change requests of the
CUSTOMER submitted to DFE PHARMA after anagreed delivery date will in no event be
accepted.
3.3 All information and data contained in DFE
PHARMA’s general product documentation andprice lists, whether in electronic or any otherform, are binding only to the extent that they are
expressly included in the Supply Contract byreference.
4.

Terms of Delivery

4.1 Unless expressly provided otherwise in the
Supply Contract, all Goods will be delivered to
the CUSTOMER "Ex Works" Incoterms 2020 DFE
PHARMA’s plant. The risk of loss or of damage to
the Goods shall pass to the CUSTOMER in
accordance with the agreed Incoterms tradeterm.
4.2 The Goods shall be packaged as set forth in the
Supply Contract or, if not stipulated therein, atthe discretion of DFE PHARMA consistent withindustry practice.
4.3 Delivery dates and/or delivery periods for Goods
shall not be binding upon DFE PHARMA, unlessexpressly accepted by DFE PHARMA as binding inwriting.
4.4 DFE PHARMA is not responsible for delayeddelivery of the Goods to the extent that suchdelay has been caused by failure of the
CUSTOMER to fulfil any of its obligations undertheSupplyContract (including,
without

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limitation, cooperation duties and/or duties toprovide feedback on technical issues required to
be provided under the Supply Contract), or by aForce Majeure event set forth in Section 11
below , and any and all agreed delivery dates
shall be prolonged in proportion to the durationof the impediment or Force Majeure event.
4.5 If delivery of the Goods is delayed for reasons
attributable to the CUSTOMER, DFE PHARMA
shall be entitled to store the Goods at the
CUSTOMER’s cost and risk at a warehouse of DFE
PHARMA’s reasonable choice. Any additionalrights of DFE PHARMA shall remain unaffected.
5.

Prices and Payment Terms

6.1 Title to the property in the Goods delivered by
DFE PHARMA shall only be transferred to the
CUSTOMER after DFE PHARMA has received full
payment of all amounts owed by the CUSTOMER
under the Supply Contract.
6.2 After delivery to the CUSTOMER and prior to thetransfer of title pursuant to the foregoing clause
6.1, the CUSTOMER shall (i) keep the Goods
subject to retention of title identified as DFE
PHARMA’s property and separate from goods
owned by CUSTOMER or third parties, (ii) notdispose of them other than in the ordinary courseof business, and (iii) shall assist DFE PHARMA in
taking any measures reasonably requested by
DFE PHARMA in order to protect DFE PHARMA’s
title to the Goods.

5.1 Except if agreed otherwise in the Supply
Contract, all prices for Goods shall be "Ex Works"
Incoterms 2020 DFE PHARMA’s plant and shallbe quoted, invoiced and paid in Euros.

7.

5.2 All prices for Goods stated in DFE PHARMA’s
quotations and offers and in the Supply
Contracts are exclusive of VAT, exclusive ofimport and export duties, excise duties and othertaxes or levies imposed or charged in relation to
the Goods and their transportation. CUSTOMER
shall pay any such VAT, import and export
duties, excise duties and other taxes or levies in
addition to the prices of the Goods.

7.1 Subject to the CUSTOMER's compliance with theterms of clause 7.3 below, DFE PHARMA
warrants to the CUSTOMER that, for a period of
twelve (12) months from delivery to the
CUSTOMER, the Goods supplied to the
CUSTOMER will be free from defects in material,
workmanship and design, and conform tospecifications agreed under the Supply Contract,
if any.

5.3 Except if agreed otherwise in the Supply
Contract, payments by the CUSTOMER must be
effected within 14 days from the date of
CUSTOMER’s receipt of DFE PHARMA’s respective
invoice without deduction.

7.2 In no event shall DFE PHARMA be under any
warranty liability hereunder to the extent that adefect of the Goods has been caused by the
CUSTOMER’s
misuse,neglect,
improperhandling, accident or unusual deterioration ordegradation of the Goods or parts thereof due tophysicalenvironment
beyondagreedspecifications.

5.4 If and insofar as the prices of the Goods are
based on price lists of DFE PHARMA, the current
price list at the time of delivery shall apply. DFE
PHARMA reserves the right to adjust the pricesof the Goods, or change the price list. In case ofan adjustment to the price or change to the pricelist, DFE PHARMA shall notify CUSTOMER in
writing as soon as possible but ultimately before
the effective date of such adjustment or change.
In the event CUSTOMER does not agree to the
proposed price adjustment or change to the pricelist, CUSTOMER shall have the right to terminate
the Supply Contract with immediate effect.
5.5 The CUSTOMER is not entitled to offset any sum
which he owes to DFE PHARMA from any sum
which DFE PHARMA owes to the CUSTOMER, or
to withhold payment in view of claims of the
CUSTOMER, unless the respective counterclaimof the CUSTOMER has been accepted by DFE
PHARMA or is evidenced by a final court decision.
6.

Retention of Title© DFE PHARMA GmbH & Co. KG
General Terms of Sale
November 2020

Warranty for Defects

7.3 The CUSTOMER shall inspect and check alldelivered Goods immediately upon receipt as towhether or not they exhibit any apparent
defects. The CUSTOMER shall promptly notify
DFE PHARMA of any defects detected upon suchdelivery inspection. In the event that the
CUSTOMER becomes aware of a hidden defect of
the Goods (i.e. a defect that is not apparent upondelivery inspection), the CUSTOMER shallpromptly notify DFE PHARMA thereof upon
becoming aware of such hidden defect. DFE
PHARMA does not accept any defects liability for
Goods (and the Goods shall be deemed accepted
as free from defects), if the CUSTOMER fails toprovide prompt notice of a defect in accordancewith the foregoing.
7.4 If a Product has a defect attributable to DFE
PHARMA pursuant to clauses 7.1 and 7.3 above,
DFE PHARMA – at its sole discretion – shallremedy such defect by either

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Supply Contract; and/or

replacing the defective Goods; or(ii) reducing the purchase price of the Goods
commensurate to the reduction in purchasevalue related to the defect of the Goods, or

7.5 The warranties covered in this Section 7 are
exclusive and in lieu of any additional warranties,
express or implied, provided by the laws
governing the Supply Contract, if any. Claims fordamages relating to defects of the Goods may
only be asserted in accordance with thelimitations agreed under the Supply Contract(including, without limitation, the provisions set
forth in Section 8 below).
8.

Limitation of Liability for Damages

8.1 Unless expressly provided otherwise in the
Supply Contract, DFE PHARMA’s liability fordamages, regardless of its legal basis (whether
arising from breach contract or in tort, or under
any other theory) shall be excluded except forthe cases set forth in clauses 8.2 and 8.3 below.
8.2 DFE PHARMA accepts liability in accordance withapplicable laws and regulations in any of thefollowing events:(i)in the event of intentional and/or grossnegligent behavior on the part of DFE
PHARMA and/or its employees or agents;(ii) in the event of death, injury and/or damage
to the health of a natural person caused by
negligence of DFE PHARMA and/or its
employees or agents;(iii) to the extent that DFE PHARMA shall haveassumed an unconditional guarantee for a
specific characteristic of Goods, it being
understood that specifications agreed under
the Supply Contract are only warranted
pursuant to Section 7 above, and do notconstituteguaranteedcharacteristics,© DFE PHARMA GmbH & Co. KG
General Terms of Sale
November 2020

such(iv) to the extent that DFE PHARMA is liable for
personal injury and/or damage to private
property in accordance with the mandatory
provisions of the applicable product liability
law.

(iii) issuing to the CUSTOMER a credit for thepurchase price of the defective Product.
If DFE PHARMA fails to remedy a defect of theGoods in accordance with the foregoing, or
refuses to remedy such a defect within areasonable time after having received written
notice by the CUSTOMER requesting the curingof the defect within a reasonable period of time,
the CUSTOMER shall be entitled to rescind theSupply Contract, or to demand a reduction of thepurchase price for the Goods commensurate to
the reduction in purchase value related to thedefect of the Goods.

under

8.3 Furthermore, DFE PHARMA accepts liability inaccordance with applicable laws and regulationsin the event of a breach of essential contract
obligations by DFE PHARMA and/or its employees
or agents under the Supply Contract. For
purposes of these Conditions, the term “essential
contract obligations” means any obligations of
DFE PHARMA under the Supply Contract which
are fundamental to the proper execution of suchcontract and which the CUSTOMER may
reasonably rely on in connection with theperformance of the Supply Contract. In the eventof any such breach, however, DFE PHARMA's
liability is limited to the amount of damage
foreseeable and typical to the contract. DFE
PHARMA's liability pursuant to clause 8.2 above
shall remain unaffected.
9.

Intellectual Property Rights

9.1 CUSTOMER acknowledges that the Goods as well
as all software, drawings, documents, data,
information and/or documentation furnished by
DFE PHARMA to the CUSTOMER in connection
with the performance of the Supply Contract(jointly: “DFE PHARMA Materials”) incorporate
valuable technical know-how and are at least inpart protected by copyright, patent and/or otherindustrial or intellectual property rights.
9.2 All title to the intellectual or industrial property
in work results created by DFE PHARMA and/or
its sub-suppliers in relation to the Goods and theDFE PHARMA Materials remains vested in DFE
PHARMA and its sub-suppliers. Unless provided
otherwise in the Supply Contract, CUSTOMER is
granted a non-exclusive right to use the DFE
PHARMA Materials (only) for the limited purposeof using the Product as in the Supply Contract.
Any other forms of use shall require DFE
PHARMA’s prior written consent. In particular,
any use of DFE PHARMA Materials for the
purpose of re-engineering and/or manufacture ofGoods with identical or similar characteristics isstrictly prohibited.
10. Confidentiality
10.1 CUSTOMER shall ensure that its officials,
employees and any third parties engaged by it,
shall protect the confidentiality of all informationthat comes to its notice about DFE PHARMA,

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even if that information is not designated as
being confidential, and shall refrain without theprior written permission of DFE PHARMA frommaking direct or indirect use of its relationshipwith DFE PHARMA for promotional activities orother purposes.
10.2 In the event CUSTOMER is obliged to disclose
confidential information on the basis of a court,or regulatory order, CUSTOMER shall only beallowed to disclose such information after having
obtained written approval from DFE PHARMA
which shall not unreasonably withhold.
11. Force Majeure11.1 Any delay in or failure by DFE PHARMA toperform any obligation under the Supply
Contract shall be excused and shall not give riseto any claims for damages, if and to the extent
such delay or failure of performance is caused byan event of Force Majeure.
11.2 For purposes of these Conditions, the term
“Force Majeure” shall mean any event notreasonably foreseeable and/or beyond any
reasonable control of DFE PHARMA, including,
without limitation, any of the following events:(viii) epidemic, including, without limitation, any
delays or impediments caused by measurestaken by business, logistics or travel partners or
by governmental authorities, or deemednecessary by either party to prevent or containthe coronavirus disease (COVID-19) outbreak,and affecting the manufacture and/or delivery ofGoods.
11.3 DFE PHARMA shall as soon as reasonably
practical notify the CUSTOMER of the existenceof any Force Majeure event and the probableduration thereof, and shall provide the
CUSTOMER with updates concerning the samefrom time to time. The times and deadlines for
performance of the Supply Contract shall be
extended equivalent to the time of nonperformance resulting from such Force Majeure
event.
11.4 If the force majeure situation is reasonably
expected to continue for more than two months
or has already lasted for two months, the otherparty may terminate the contract withimmediate effect and without recourse to thecourts, without thereby creating any rights tocompensation.
12. Applicable Law and Jurisdiction(i)the fact that DFE PHARMA has not received
supplies of products, materials and/or services
required to manufacture the Goods from a subsupplier, unless the lack of supply was caused by
failure by DFE PHARMA to perform its contractual
obligations, or to purchase the respective
products, materials and/or services from thesub-supplier in a timely manner;(ii) hindrances to perform the Supply Contract
arising from applicable trade sanctions,
including, without limitation, embargos issued byany governmental or legislative body of theUnited States of America, the European Union,
Germany, and/or other relevant countries;

12.1 The present Conditions and the Supply Contract
shall be construed in accordance with andgoverned by the laws of Germany, excluding theapplication of the UN-Convention on Contracts
for the International Sale of Goods.
12.2 The place of jurisdiction for any disputes related
to, or in connection with the Supply Contract
shall be the courts in Düsseldorf, Germany. In
addition, each party is entitled to initiate legal
proceedings against the other party at the
principal place of business of the defendant
party. Except for preliminary injunctions, thechoices of forum set forth in this clause 12.2 shallbe exclusive.

(iii) war, hostilities (whether war be declared or not),invasion, act of foreign enemies;(iv) rebellion, terrorism, sabotage by persons otherthan DFE PHARMA’s personnel, revolution,
insurrection, military or usurped power, or civil
war;(v) riot, commotion, disorder, strike, lockout orother labour disputes;(vi) munitions of war, explosive materials, ionisingradiation or contamination by radio-activity;(vii) natural catastrophes such as earthquake,hurricane, typhoon or volcanic activity; and© DFE PHARMA GmbH & Co. KG
General Terms of Sale
November 2020

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