General terms and conditions of business
§1 General, scope of application
(1) The following General Terms and Conditions of Business apply to the sale and delivery of pharmaceuticals by Farmako GmbH, Hanauer Landstraße 48a, 60314 Frankfurt am Main, registered with the Frankfurt am Main Local Court under HRB 113291, VAT ID: DE320970264 (hereinafter referred to as the "Seller") and the users of the https:www.farmako.de platform (hereinafter referred to as the "Buyer"), irrespective of whether these transactions are concluded online or offline. The following General Terms and Conditions shall apply in the version valid at the time of the conclusion of the contract. They shall also apply to all future deliveries, services and offers, even if they are not expressly agreed again.
(2) The buyer's terms and conditions of business shall not apply and shall not become part of the contract, even if Farmako GmbH does not separately object to their application in individual cases. Any reference by Farmako GmbH to a letter containing or referring to the buyer's terms and conditions shall not be deemed to constitute consent.
§2 Conclusion of the contract
(1) All offers of the seller are subject to change and non-binding. A contract is concluded only after the acceptance of the order in accordance with § 2 No.4.
(2) The legal relationship between the Seller and the Buyer shall be governed solely by the purchase contract, including these General Terms and Conditions. This contract fully reflects all agreements between the contracting parties regarding the subject matter of the contract. Verbal promises made by the Seller prior to the conclusion of this contract are not legally binding. Verbal agreements between the contracting parties shall be replaced by the contract unless it is expressly stated in each case that they shall continue to be binding.
(3) By placing an order via fax, e-mail or in the online shop, the buyer makes a binding offer to purchase the products listed in the order. An order by the purchaser via the online shop is a legally binding offer with the click on the button "Send order". Changes and additions to the order must be made in writing.
(4) An order of the Buyer shall only be accepted by the Seller when it has been expressly confirmed by the Seller or executed by delivery. In the case of orders via the online shop, the confirmation of receipt does not constitute acceptance of the contractual offer. The contract is only concluded with the order confirmation sent separately by the seller.
(5) Illustrations, drawings, calculations and other documents may not be made accessible to third parties. In particular, written documents and - also oral - information designated as "confidential" may not be disclosed to third parties without the express written consent of the Seller.
§3 Verification and confirmation obligations
(1) Prior to each delivery, the Buyer shall be obliged to transmit to the Seller by fax or e-mail the certificate of permission to operate a pharmacy pursuant to Section 1 (1) ApoG or the permission to operate a hospital pharmacy pursuant to Section 14 (1) ApoG and, if applicable, the official approval of the hospital supply contract pursuant to Section 14 (4), (5) ApoG and, in the case of wholesale trade, a permit pursuant to Section 52a (1) AMG as well as the narcotics number notification of the Federal Opium Agency. The evidence of the purchaser must therefore contain a current company name and address and must not be out of date. The seller can refuse delivery until he has received the necessary documents. If the Seller does not receive the documents from the Buyer within seven days despite being requested to do so, the Seller may withdraw from the contract.
(2) The Purchaser shall be obliged to notify the Vendor without delay if the permission referred to in paragraph 1 has expired or the hospital supply contract has been terminated or the permission of the authority has expired.
(3) The purchaser is obliged to return the receipt duly completed and signed or provided with his electronic signature in accordance with § 2 BtMBinHV to the company Med-X-Press in Goslar, the storage service provider of Farmako GmbH, at the latest on the working day following receipt of the narcotics.
§4 Prices and terms of payment
(1) All prices quoted by the Seller are subject to the applicable statutory value added tax. If payment is made within 7 days, the Buyer shall be granted a discount of 2%. The date of receipt of the payment by the seller is decisive for this.
(2) Delivery costs shall be borne by the seller. Packaging is only to be paid by the buyer if it is invoiced to him.
(3) Transport containers, cooling boxes and other loan packaging, as well as temperature loggers remain the property of the seller. They are to be treated with care and returned without delay. They may only be used in the movement of goods between Farmako GmbH and the buyer.
(4) Invoices shall generally be issued after each delivery. The Buyer shall check all invoices and statements for correctness and completeness. Objections to invoices must be raised in writing within one month of receipt. If objections are not raised in time, invoices shall be deemed to have been approved. Other objections must be raised immediately.
(5) Unless otherwise agreed in writing, the invoice amount is to be transferred to the account specified in the invoice within 30 days of the invoice date without deductions, quoting the invoice number. Payments by cheque or bill of exchange are excluded. The date of receipt by the Seller shall be decisive for the date of payment. If the Buyer fails to make payment when due, the outstanding amounts shall bear interest from the due date at a rate of 9% p.a. above the base rate; the right to claim higher interest and further damages in the event of default shall remain unaffected.
(6) If the Buyer defaults on its payment obligations, the Seller shall be entitled to withhold further deliveries or to insist on advance payment. Further claims of the seller remain unaffected by this.
(7) Offsetting with counterclaims of the buyer or the retention of payments due to such claims is only permissible insofar as the counterclaims are undisputed or have been legally established. In the event of defects in the delivery, the Buyer's counter rights shall remain unaffected.
(8) The assignment of contractual rights without the prior express written consent of the Seller is not permitted. Section 354a of the German Commercial Code (HGB) remains unaffected.
§6 Delivery and delivery time
(1) Unless otherwise agreed, delivery shall be made ex Seller's warehouse. Mode of dispatch and packaging are subject to the dutiful discretion of the seller. The shipment shall be insured.
(2) The availability of the products and their delivery date result from the respective information provided by the Seller. Deadlines and dates for deliveries and services promised by the Seller are always only approximate. This does not apply to expressly agreed and promised fixed deadlines and fixed dates. If shipment has been agreed, delivery periods and delivery dates shall refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport. The Seller is also entitled to deliver before an agreed delivery date. If no delivery date has been agreed, the Seller shall be entitled to deliver immediately.
(3) If the Buyer does not fulfil his contractual obligations towards the Seller, in particular with regard to the necessary evidence in accordance with § 3, the delivery and performance periods shall be extended for the Seller or the delivery and performance dates shall be postponed by the period in which the Buyer does not fulfil his contractual obligations towards the Seller. This shall not affect the Seller's rights arising from default.
(4) The risk shall pass to the Buyer at the latest when the goods are handed over to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply if partial deliveries are made or if the Seller has assumed other services (e.g. shipping). If dispatch or handover is delayed due to a circumstance caused by the Buyer, the risk shall pass to the Buyer from the day on which the goods are ready for dispatch and the Seller has notified the Buyer of this.
(5) The Seller shall only be entitled to make partial deliveries if the partial delivery is usable for the Buyer within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured and the Buyer does not incur any significant additional expenses or costs as a result (unless the Seller agrees to bear these costs).
(6) The Seller shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events not foreseeable at the time of conclusion of the contract (e. g. (e.g. disruptions of operations of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in obtaining the necessary official permits, official measures or the non-delivery, incorrect delivery or late delivery by suppliers) for which the Seller is not responsible. If such events make the delivery or service considerably more difficult or impossible and the hindrance is not only of temporary duration, the Vendor shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or the delivery or service deadlines shall be postponed by the period of the hindrance plus a reasonable start-up period. Insofar as the Buyer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by means of an immediate written declaration to the Seller.
(7) If the Seller is in default with a delivery or if a delivery becomes impossible, for whatever reason, the Seller's liability for damages shall be limited in accordance with the liability clause (§ 9) of these General Terms and Conditions.
(8) If the Buyer defaults on acceptance or violates other duties to cooperate, the Seller shall be entitled to demand compensation for the damage it has incurred, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the goods shall also pass to the Buyer at the point in time at which the Buyer defaults on acceptance or breaches its duties to cooperate and the shipment is delayed as a result.
§7 Retention of title
(1) The goods delivered by the seller to the buyer remain the property of Farmako GmbH until full payment of all secured claims.
(2) The Buyer shall store the goods subject to retention of title for the Seller free of charge. The buyer is obliged to treat the goods with care.
(3) The buyer is entitled to process and sell the goods in the ordinary course of business. Pledges and transfers of ownership by way of security are not permitted.
(4) The treatment and processing of the goods by the Buyer shall always be carried out in the name and on behalf of the Seller as manufacturer. The Vendor shall immediately receive ownership. If processing is carried out with objects which do not belong to the Vendor or if the value of the processed object is higher than the value of the reserved goods, the Vendor shall acquire co-ownership of the newly created object in the ratio of the value of the reserved goods to the value of the newly created object.
(5) In the event of resale of the goods subject to retention of title, the purchaser already now assigns by way of security all current and future claims in the amount of the invoice amount which accrue to it against a third party as a result of the resale until payment has been made in full. The same applies to other claims which take the place of the reserved goods or which otherwise arise in respect of the reserved goods, e.g. insurance claims or claims in tort in the event of loss or destruction. The Seller revocably authorises the Buyer to collect the claims assigned to the Seller in his own name. The Vendor reserves the right to collect the claims itself as soon as the Buyer does not properly meet its payment obligations and defaults on payment.
(6) In the event of access by third parties to the goods subject to retention of title, in particular by way of seizure, the buyer is obliged to inform them immediately of the ownership of Farmako GmbH in writing as well as verbally and also to undertake everything else to protect the rights of the seller. The buyer must inform the seller of this immediately in order to enable the seller to enforce its rights of ownership. Upon request, the buyer shall at any time prove where the goods subject to retention of title are located.
(7) The Seller is entitled to withdraw from the contract and to demand the return of the goods in the event of conduct by the Buyer in breach of the contract, in particular in the event of default in payment or in the event of a breach of an obligation under Nos. 2 and 6 of this provision.
§8 Warranty, liability for defects
(1) The warranty period is one year from delivery or, if acceptance is required, from acceptance. This period does not apply to claims for damages by the buyer arising from injury to life, limb or health or from intentional or grossly negligent breaches of duty by Farmako GmbH or its vicarious agents, which are each subject to the statutory limitation period.
(2) The delivered goods shall be inspected carefully immediately after delivery to the Buyer or to the third party designated by him. The goods shall be deemed to have been approved by the Buyer with regard to obvious defects or other defects which would have been recognisable in the course of an immediate, careful inspection if the Seller does not receive a written notice of defect within seven working days of delivery. With regard to other defects, the goods shall be deemed to have been approved by the Buyer if the notice of defect is not received by the Seller within seven working days after the time at which the defect became apparent; however, if the defect was already apparent to the Buyer at an earlier time during normal use, this earlier time shall be decisive for the commencement of the period for giving notice of defect.
(3) In the event of a defect notified in good time, the Seller shall, at its discretion, first be obliged and entitled to rectify the defect or make a replacement delivery. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the rectification or replacement delivery, the Buyer may withdraw from the contract or reduce the purchase price accordingly.
(4) If a defect is due to the fault of the Seller, the Buyer may claim damages under the conditions set out in the liability clause (9).
(5) The warranty shall not apply if the Buyer modifies the goods or has them modified by a third party without the consent of the Seller and the rectification of defects is thereby rendered impossible or unreasonably difficult. In any case, the Buyer shall bear the additional costs of the rectification of defects arising from the modification.
(6) The Seller shall not be responsible for any loss of quality or reduction in the effectiveness or properties of the goods if the product has not been properly handled by the Buyer. This includes: improper storage, transport, permanent exposure to sunlight, contact with water, fire or heat. The limitation of liability shall only apply to the Seller insofar as this is not countered by intentional or grossly negligent conduct on the part of the Seller in accordance with the conditions of the liability clause (9).
(1) The Seller's liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, shall be limited in accordance with this clause insofar as fault is involved in each case.
(2) The Seller shall not be liable in the event of simple negligence on the part of its executive bodies, legal representatives, employees or other vicarious agents, unless this involves a breach of material contractual obligations. Material contractual obligations are the obligation to deliver the goods on time, their freedom from defects of title and such material defects that impair their functionality or usability more than insignificantly, as well as advisory, protective and custodial obligations that are intended to enable the Buyer to use the goods in accordance with the contract or are intended to protect the life or limb of the Buyer's personnel or to protect the Buyer's property from significant damage.
(3) Insofar as the seller is liable on the merits for damages in accordance with § 10 No. 2, this liability is limited to damages which Farmako GmbH foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which it should have foreseen by exercising due care. Indirect damage and consequential damage resulting from defects in the goods are also only eligible for compensation insofar as such damage is typically to be expected when the goods are used as intended.
(4) The above exclusions and limitations of liability apply to the same extent in favour of the organs, legal representatives, employees and other vicarious agents of Farmako GmbH.
(5) The limitations of this clause do not apply to Farmako GmbH's liability for wilful misconduct, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.
§10 Final provisions
(1) The place of performance for all obligations arising from the contractual relationship is the registered office of the Seller, unless otherwise specified.
(2) If the Buyer is a merchant, a legal entity under public law or a special fund under public law or if he has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between the Seller and the Buyer shall be Frankfurt am Main. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
(3) The relations between Farmako GmbH and the buyer shall be governed exclusively by the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 shall not apply.
(4) Insofar as the contract or these General Terms and Conditions of Sale contain loopholes, those legally effective provisions shall be deemed to have been agreed to fill these loopholes which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Sale if they had been aware of the loophole.
§11 Data protection
(1) The Seller collects, stores or transmits personal data exclusively within the scope of what is necessary for the fulfilment of the business purposes in accordance with the applicable data protection provisions. For the purpose of deciding on the establishment, implementation or termination of the business relationship, the Seller shall also collect or use, among other things, information from SCHUFA and other credit agencies as well as probability values.
(2) Upon request, the Buyer will be informed in writing whether and, if so, which personal data(s) about him are stored by the Seller.
Cancellation policy for merchants
You have the right to cancel the purchase contract within 30 days without giving any reason.
The revocation period is 30 days from the day on which you or a third party named by you, who is not the carrier, has or has taken possession of the goods.
The following regulation concerns the taking back of Farmako products as returns.
A return is the return of marketable goods from Farmako GmbH.
Taking into account the following points, it is possible to return goods within one month after delivery.
Every return must be registered in advance at the following telephone number: 069 / 989 721 520. The further process will then be explained to you.
Goods that are not excluded from return (cf. point 2 below) will only be taken back on presentation of a copy of the invoice and confirmation of proper storage as well as a properly completed return slip. For this purpose, the returned goods must be packed in a firm outer carton (i.e. not a dispatch bag) and made available for collection from the pharmacy in due time.
In all cases, we charge a processing fee of € 25.00 plus VAT per return shipment due to the amount of work involved. This fee will be deducted from the credit amount to be refunded.
Expired goods are excluded from return.
Goods with the following characteristics are further excluded from return:
Goods with foreign labels
Goods with a remaining term of less than 3 months
Goods without a copy of the invoice and confirmation of proper storage
Nevertheless returned goods, which are excluded from the return, will be returned to you at your expense.
The credit note is issued after deduction of all discounts granted on the basis of the purchase price actually paid less handling fee.