Terms & Conditions

General Terms and Conditions

As of 20 October 2023

§ 1 Scope of Application

These General Terms and Conditions of Sale (GTC) apply to all business relations with customers (“Buyer”) of hvd medical GmbH (“Supplier”). The GTC apply only if the Buyer is an entrepreneur (§ 14 German Civil Code – BGB), a legal entity under public law, or a special fund under public law.
These GTC apply in particular to contracts for the sale and/or delivery of movable goods (“Goods”), irrespective of whether the Supplier manufactures the Goods itself or purchases them from suppliers. Unless otherwise agreed, the GTC in the version valid at the time of the Buyer’s order or, in any case, the last version communicated to the Buyer in text form shall also apply as a framework agreement to similar future contracts, without the need to refer to them again in each individual case.
The Supplier’s GTC apply exclusively. Deviating, conflicting, or supplementary general terms and conditions of the Buyer shall only become part of the contract if and to the extent that the Supplier has expressly agreed to their validity. This requirement of consent applies in all cases, including, for example, when the Buyer refers to its own terms and conditions in the context of the order and we do not expressly object.
Individual agreements (e.g., framework supply agreements, quality assurance agreements, responsibility allocation agreements) and statements in our order confirmation take precedence over these GTC. In case of doubt, trade terms shall be interpreted in accordance with the Incoterms® issued by the International Chamber of Commerce in Paris (ICC) in the version valid at the time of contract conclusion.
Legally relevant declarations and notifications by the Buyer in relation to the contract (e.g., setting deadlines, notice of defects, withdrawal, or price reduction) must be made in writing. For the purposes of these GTC, “in writing” includes written and text form (e.g., letter, e-mail, fax). Statutory formal requirements and further evidence, particularly in cases of doubt as to the authority of the declaring party, remain unaffected.
References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, statutory provisions shall apply unless they are directly modified or expressly excluded in these GTC.

§ 2 Offers

Offers made by the Supplier are non-binding and without obligation. This also applies if we have provided the Buyer with catalogues, technical documentation (e.g., manufacturer’s instructions, formulations, calculations, costings), other product descriptions, or documents – including in electronic form – to which we reserve ownership and copyright.
The Buyer’s order for Goods shall be deemed a binding contractual offer. Unless otherwise stated in the order, the Supplier is entitled to accept this contractual offer within seven days of its receipt.
Acceptance may be declared either in writing (e.g., by order confirmation) or by delivery of the Goods to the Buyer.
The Supplier sells, among other things, medicinal products intended for the manufacture of magistral preparations by pharmaceutical or medical personnel before being dispensed to or administered to the patient. If such medicinal products are purchased below the manufacturer’s purchase price for proprietary medicinal products, the Buyer warrants that these products will be used exclusively within the scope of a manufacturing authorisation pursuant to § 13 of the German Medicinal Products Act (AMG) for infusion solutions and other medicinal products within the meaning of § 2 (1) AMG, and will be invoiced according to the “Hilfstaxe” price list. Should the Buyer, when pricing the sale of solutions made from products supplied by the Supplier, or when using the medicinal products purchased from us, act outside the scope of the manufacturing authorisation and thereby violate the German Medicinal Products Price Ordinance, full responsibility shall lie with the Buyer.

§ 3 Delivery Periods

Unless otherwise agreed in writing between the Supplier and the Buyer, delivery dates and delivery periods are non-binding. Binding delivery periods agreed in writing shall commence upon conclusion of the contract, unless the Buyer is required to make advance payments. In the latter case, agreed periods shall commence upon receipt by us of the Buyer’s consideration. If this is not the case, the delivery period shall be four weeks from the conclusion of the contract.
If we are unable to meet binding delivery periods for reasons beyond our control (non-availability of the service), we will inform the Buyer without undue delay and at the same time provide the expected new delivery period.
If our supplier does not deliver the goods ordered by the Buyer to us at all or in a timely manner, we shall not be in default with respect to the Buyer due to the resulting delay, unless we are responsible for the untimely or failed self-supply. If our self-supply with the goods ordered by the Buyer is delayed by more than six weeks, or if it is certain that self-supply by our supplier will not take place without our responsibility, we are entitled to withdraw from the contract; any consideration already provided by the Buyer will be reimbursed without undue delay. We are not obliged to procure supplies from an alternative supplier or the manufacturer in the event of partial or complete failure of our supplier without our fault, unless this would be possible without significant economic or time-related additional effort.
In cases of force majeure and other events that we could not foresee or prevent with the due care required, such as strikes or lockouts, import and export bans, pandemics, other governmental or judicial measures and requirements, war or war-like conditions, which without our own attributable fault prevent us from delivering the goods on the binding or non-binding dates or within the agreed periods, these dates or periods shall be extended – also during a period of default – by the duration of the disruption caused by the force majeure or the aforementioned circumstances. If the delay in delivery caused thereby exceeds a period of six weeks, we and/or our customer may withdraw from the contract with respect to the affected scope of performance. If, due to force majeure or the other circumstances mentioned in sentence 1, our delivery becomes wholly or partially impossible or unreasonable, we shall be released from our delivery obligation or entitled to withdraw accordingly. Any statutory rights of withdrawal remain unaffected. The customer shall have no further claims in the cases specified in § 4 (3) and (4).
The commencement of delivery default shall be determined in accordance with statutory provisions. In any case, however, a reminder from the Buyer is required. If we are in default of delivery, the Buyer may demand lump-sum compensation for the delay. The compensation shall amount to 0.5% of the net price (delivery value) per completed calendar week of delay, but not more than a total of 5% of the delivery value of the delayed goods. We reserve the right to prove that the Buyer has suffered no damage at all or only significantly less damage than the aforementioned lump sum.
The Buyer’s rights under § 8 of these GTC and our statutory rights, in particular in the event of exclusion of the obligation to perform (e.g., due to impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.

§ 4 Delivery

Unless otherwise agreed, delivery shall be made ex warehouse, which is also the place of performance for the delivery and any subsequent performance. At the Buyer’s request, the goods will be shipped to another destination (sale by dispatch), with the costs borne by the Supplier unless otherwise agreed. If delivery is made at the special request of the Buyer via a particular mode of transport or to a specific (express) date, any additional costs incurred as a result shall be borne by the Buyer.
The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer at the latest upon handover. In the case of a sale by dispatch, however, the risk of accidental loss and accidental deterioration of the goods, as well as the risk of delay, passes upon delivery of the goods to the carrier, freight forwarder, or other person or institution designated to carry out the shipment. Where acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall apply correspondingly to the agreed acceptance. Handover or acceptance shall be deemed equivalent if the Buyer is in default of acceptance.
If the Buyer is in default of acceptance, fails to cooperate, or if our delivery is delayed for other reasons attributable to the Buyer, we are entitled to claim compensation for the damage incurred, including additional expenses (e.g., storage costs). For this purpose, we shall charge a flat-rate compensation of EUR 100 per calendar day, beginning with the delivery period or – in the absence of a delivery period – with the notification of readiness for shipment of the goods. The right to claim higher damages and our statutory claims (in particular reimbursement of additional expenses, compensation for loss of value of the goods, reasonable compensation, termination) remain unaffected; however, the lump sum shall be offset against further monetary claims. The Buyer is entitled to prove that we have suffered no damage at all or only significantly less damage than the aforementioned lump sum. If the conditions pursuant to sentence 1 apply, the risk of accidental loss or accidental deterioration of the purchased goods shall pass to the customer at the point in time when the latter is in default of acceptance or debtor’s delay.
We are entitled to make partial deliveries to the extent reasonable for the Buyer.
Obvious transport damage must be reported immediately to the Supplier and to the transport company commissioned with the delivery (carrier, freight forwarder, parcel service, etc.). For clear documentation, specific details of the damage must be recorded as legibly and comprehensively as possible on the delivery documents of the carrier (so-called “notation of damage”).
Hidden transport damage must be reported to us in writing no later than four working days after delivery. The Buyer must inspect the goods immediately upon receipt for completeness and conformity with the order and delivery documents and must report any damage or deviations without delay; otherwise, the delivery shall be deemed approved to that extent.

§ 5 Prices and Payment

Unless otherwise agreed in an individual case, our current prices at the time of the conclusion of the contract shall apply, ex warehouse, plus statutory value-added tax.
In the case of a sale by dispatch (§ 4 para. 2), the Supplier shall bear the transport costs ex warehouse, unless otherwise agreed. Any customs duties, fees, taxes, and other public charges shall be borne by the Buyer.
If, between the conclusion of the contract and delivery, public charges affecting the import or distribution of the goods are increased or newly introduced, or freight increases occur, we are entitled to adjust the purchase price. This shall also apply if the agreed prices are based on, or derived from, the provisions of the German Medicinal Products Price Ordinance. In such case, the Supplier shall inform the Buyer without delay of the changed prices. If the Buyer does not object to the changed prices within one week, they shall be deemed agreed. If the Buyer objects, the Supplier shall be entitled to withdraw from the contract within one week to the extent concerned. In this case, the Buyer shall have no claims under this contract.
The purchase price shall be payable net in cash when due. Unless otherwise agreed, the purchase price shall be due and payable within seven days from the date of invoice and delivery or acceptance of the goods. The Supplier is, however, entitled at any time, including within an ongoing business relationship, to execute a delivery in whole or in part only against advance payment. We shall declare such a reservation at the latest with the order confirmation. Furthermore, payment in advance may be required at any time if the Supplier has granted the Buyer a goods credit limit and the Buyer has exceeded it.
Upon expiry of the above payment period, the Buyer shall be in default without the need for a reminder. During default, the purchase price shall bear interest at the statutory default interest rate applicable at the time. We reserve the right to claim further default damages. This includes all fees, costs, and expenses incurred in enforcing outstanding claims, including legal proceedings in Germany or abroad. For merchants, our claim to commercial maturity interest (§ 353 German Commercial Code – HGB) remains unaffected. Furthermore, the Supplier is entitled to declare all other outstanding claims against the Buyer immediately due and payable.
The Buyer shall only have rights of set-off or retention to the extent that his claim is legally established or undisputed. In the case of defects in delivery, the Buyer’s counterclaims, in particular under § 8 para. 6 of these GTC, shall remain unaffected.
If, after conclusion of the contract, it becomes apparent (e.g., by an application to open insolvency proceedings or by exceeding the goods credit limit granted by the Supplier) that our claim to the purchase price is jeopardised by the Buyer’s lack of performance capability, we shall be entitled under the statutory provisions to refuse performance and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In contracts for the manufacture of non-fungible items (custom-made products), we may withdraw immediately; the statutory provisions on the dispensability of setting a deadline remain unaffected.
Payment of the purchase price shall be deemed effected only when the amount is finally available in one of our accounts.
The Supplier is entitled to assign its claims from the contractual relationship to third parties.

§ 6 Retention of Title

We retain title to the sold goods until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
The goods subject to retention of title may not be pledged to third parties or transferred as security before full payment of the secured claims. The Buyer must notify us in writing without delay if an application is made to open insolvency proceedings or if there are any third-party actions (e.g., seizures) against the goods belonging to us.
In the event of conduct by the Buyer in breach of contract, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract and/or demand the return of the goods on the basis of the retention of title in accordance with the statutory provisions. The request for return does not at the same time constitute a declaration of withdrawal; we are entitled instead to demand the return of the goods and to reserve the right to withdraw. If the Buyer does not pay the purchase price due, we may assert these rights only if we have previously set the Buyer a reasonable deadline for payment without success, or such deadline is dispensable under statutory provisions.
The Buyer is authorised, until revoked in accordance with (c) below, to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition:
1. The retention of title extends to the products created by processing, combining, or mixing our goods to their full value, whereby we are deemed the manufacturer. If the property rights of third parties remain in existence during processing, combination, or mixing with goods of third parties, we shall acquire co-ownership in proportion to the invoice values of the processed, combined, or mixed goods. In all other respects, the same applies to the resulting product as to the goods delivered under retention of title.
2. The Buyer hereby assigns to us, by way of security, all claims against third parties arising from the resale of the goods or the product, in total or in the amount of our possible co-ownership share pursuant to the preceding paragraph. We accept the assignment. The obligations of the Buyer set out in para. 2 also apply with regard to the assigned claims. Insofar as the Buyer acquires claims against statutory payers by delivering the goods and assigns these claims to a clearing centre (§ 300 para. 2 SGB V) for collection, the Buyer hereby also assigns his payment claims against the clearing centre to us, in total or in the amount of our possible co-ownership share pursuant to the preceding paragraph, by way of security.
3. The Buyer shall remain authorised to collect the claim alongside us. We undertake not to collect the claim as long as the Buyer meets his payment obligations towards us, has no deficiency in his ability to perform, and we do not assert the retention of title by exercising a right pursuant to para. 3. However, if this is the case, we may require the Buyer to inform us of the assigned claims and their debtors, to provide all information necessary for collection, to hand over the relevant documents, and to notify the debtors (third parties) of the assignment. In this case, we are also entitled to revoke the Buyer’s authorisation to resell and process the goods subject to retention of title.
4. If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities at our discretion upon the Buyer’s request.
The Buyer is obliged to store the goods subject to retention of title at his own expense with the care of a prudent businessman and to insure them against the usual storage risks. He hereby assigns to us his claims arising from the insurance contracts.

§ 7 Buyer’s Claims for Defects

The Buyer’s rights in the event of material and legal defects (including incorrect and short delivery as well as improper assembly/installation or defective instructions) shall be governed by the statutory provisions unless otherwise specified below. In all cases, rights arising from special guarantees, in particular by the manufacturer, remain unaffected.
The basis of our liability for defects is above all the agreement reached on the quality and the intended use of the goods (including accessories and instructions). An agreement on the quality in this sense shall be deemed to include all product descriptions and manufacturer’s specifications that are the subject of the individual contract or that were publicly announced by us (in particular in catalogues or on our website) at the time of conclusion of the contract. If no quality has been agreed, it shall be determined in accordance with the statutory provisions whether a defect exists (§ 434 para. 3 BGB). Public statements by the manufacturer or on his behalf, in particular in advertising or on the label of the goods, shall take precedence over statements by other third parties.
The Supplier is generally not liable for defects that the Buyer knew about at the time of conclusion of the contract or that he failed to recognise due to gross negligence (§ 442 BGB). Furthermore, the Buyer’s claims for defects require that he has complied with his statutory duties of inspection and notification (§§ 377, 381 HGB). If a defect becomes apparent upon delivery, inspection, or at any later time, it must be reported to us in writing without undue delay. In any case, obvious defects must be reported within three working days of delivery, and defects not identifiable during inspection within the same period from discovery, in writing. If the Buyer fails to carry out proper inspection and/or notification of defects, our liability for the defect not, or not timely, or not properly, reported shall be excluded in accordance with statutory provisions.
If the delivered item is defective, we may first choose whether to remedy the defect (rectification) or deliver an item free of defects (replacement delivery). If the type of remedy chosen by us is unreasonable for the Buyer in a particular case, he may refuse it. Our right to refuse remedy under statutory conditions remains unaffected.
We are entitled to make the owed remedy dependent on the Buyer paying the purchase price due. However, the Buyer is entitled to retain a reasonable part of the purchase price in proportion to the defect.
The Buyer shall give us the time and opportunity required to carry out the owed remedy, in particular to hand over the goods complained of for inspection purposes. In the case of a replacement delivery, the Buyer shall return the defective item to us in accordance with statutory provisions upon our request.
The expenses required for the purpose of inspection and remedy, in particular transport, travel, labour, and material costs, shall be borne or reimbursed by us in accordance with the statutory provisions and these GTC, if a defect actually exists. Otherwise, we may demand reimbursement from the Buyer for the costs incurred from the unjustified demand for defect remedy if the Buyer knew or should have known that no defect actually existed.
If a reasonable period set by the Buyer for the remedy has expired unsuccessfully or is dispensable under statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price in accordance with statutory provisions. There shall, however, be no right of withdrawal in the case of a minor defect.
The Buyer’s claims for reimbursement of expenses under § 445a para. 1 BGB are excluded unless the last contract in the supply chain is a consumer goods purchase (§§ 478, 474 BGB). The Buyer’s claims for damages or reimbursement of futile expenses (§ 284 BGB) shall also exist in the case of defects only in accordance with §§ 8 and 9 below.

§ 8 Other Liability

Unless otherwise provided in these GTC, including the provisions below, we shall be liable in accordance with statutory provisions for breaches of contractual and non-contractual obligations.
We shall be liable for damages – regardless of the legal basis – in the event of intent and gross negligence within the framework of fault-based liability. In the event of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g., diligence in our own affairs; minor breach of duty), only:
1. for damages resulting from injury to life, body, or health,
2. for damages resulting from the breach of an essential contractual obligation (an obligation whose fulfilment is essential to the proper execution of the contract and on whose observance the contracting party regularly relies and may rely); in this case, our liability shall, however, be limited to compensation for the foreseeable, typically occurring damage.
The liability limitations resulting from para. 2 shall also apply to third parties and in the event of breaches of duty by persons (including for their benefit) whose fault we are responsible for under statutory provisions. They shall not apply where a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed, nor for claims of the Buyer under the Product Liability Act or the German Medicinal Products Act.
The Buyer may withdraw from or terminate the contract due to a breach of duty that does not consist of a defect only if we are responsible for the breach of duty. A free right of termination of the Buyer (in particular under §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.

§ 9 Limitation

Contrary to § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material and legal defects shall be one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
The above limitation periods of the law on sales also apply to contractual and non-contractual claims for damages of the Buyer based on a defect of the goods, unless the application of the regular statutory limitation (§§ 195, 199 BGB) would lead to a shorter limitation period in the individual case.

Claims for damages of the Buyer under § 8 para. 2 sentence 1 and sentence 2, as well as under the Product Liability Act, shall become time-barred exclusively in accordance with the statutory limitation periods.

§ 10 Final Provisions

The place of jurisdiction is Berlin. The law of the Federal Republic of Germany applies. This agreement on jurisdiction and choice of law shall apply only in relation to our customers who are merchants within the meaning of the German Commercial Code (HGB). The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

Should any of the above provisions be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. In such case, we are entitled to replace the invalid provision with another provision that comes as close as possible to the economic purpose of the invalid provision and is valid.