GTC

General Terms and Conditions of Sale and Delivery of the Wholesale Pharmaceutical Trade of SMD-Pharmaceutical GmbH

(Business address in Werksweg 2, 3710 Ziersdorf,

FN 427268 k, UID-Nummer: ATU69318179)

Version from December 2021

  1. APPLICABILITY

1.1      These General Terms and Conditions of Sale and Delivery (hereinafter GTC) are binding for all present and future business transactions with SMD-Pharmaceutical GmbH, FN 427268 k (hereinafter SMD-Pharma), even if not expressly referred to. SMD-Pharma exclusively concludes contracts in business transactions with entrepreneurs (hereinafter referred to as customer) (B2B). Any (general) terms and conditions of sale and delivery or terms and conditions of business of the customer are expressly excluded and contract performance actions on the part of SMD-Pharma shall not be deemed as subsequent consent to contractual terms and conditions deviating from these GTC.

1.2      Deviations from these GTC can only be bindingly agreed upon if SMD-Pharma acknowledges the deviations in writing. Oral agreements must be in writing to be effective. This also applies to the waiver of this written form requirement.

1.3      Placement of an order by the customer shall simultaneously be deemed as a declaration of consent to these GTC.

  1. ORDER, CONCLUSION OF CONTRACT AND DELIVERY OBLIGATIONS

2.1      SMD-Pharma distributes and markets medicinal products (Arzneimittel) and medical products (Medizinprodukte). The ordering of goods and the conclusion of contracts with SMD-Pharma is therefore only possible for customers authorized to trade in medicinal and medical products and requires the prior transmission of a pharmacy business number or a GDP/GMP certificate or a foreign certificate equivalent to this by the customer. Subsequently, SMD-Pharma verifies the prerequisites and the existence of the customer’s entitlement to purchase via the EUDRA GMP online portal. After successful verification, the customer is authorized to place orders.

2.2      The display of goods in the web store at https://plattform.smd-pharma.at/einkauf (hereinafter referred to as web store) does not constitute a binding offer on the part of SMD-Pharma to conclude a purchase contract. The information contained in price lists or advertising media is non-binding. The customer merely makes an offer of purchase to SMD-Pharma by placing an order. There is no right to conclude a contract. SMD-Pharma is entitled to refuse the conclusion of a contract without giving reasons.

2.3      The ordering process can be carried out either by ordering via the web store, or by other customer communication (order form, e-mail, telephone call, fax).

2.4       The ordering process via the webshop consists of the following steps:

2.4.1   Login as a registered customer (see point 2.1);

2.4.2   Selection of the desired goods;

2.4.3   Checking the information in the shopping cart and confirming the order;

2.4.4   Re-checking and, if necessary, correction of the data provided and the shopping cart, as well as specification of the billing address and, if necessary, an alternative delivery address; and

2.4.5   Binding submission of the order by clicking the button “order subject to payment”.

2.5      By submitting the order in the web store or by placing an order via e-mail, order form, telephone call or similar ordering method, the customer submits a binding offer directed towards the conclusion of the purchase contract. In the case of medicines, narcotics, hazardous substances and other substances, the supply and use of which is subject to statutory or official regulations, the order shall at the same time be deemed to be confirmation that the customer has all the necessary permits and requirements for the purchase and further supply.

2.6      With the confirmation of the order by SMD-Pharma (acceptance of the customer’s offer), a contractual relationship is created between the supplier and the customer, which is governed by the provisions of these GTC.

2.7      The customer’s order via the web store is only considered accepted with the order confirmation of SMD-Pharma, whereby a purchase contract is concluded, which is governed by the provisions of these GTC. In the case of orders placed by other means, the contract is only concluded upon fulfilment (i.e. sending) by SMD-Pharma.

2.8      SMD-Pharma is only obligated to perform (i.e. send or provide the ordered goods) as soon as the customer has completely fulfilled all his obligations that are necessary for the performance. The corresponding payment modality (prepayment, “prompt on receipt of invoice”, monthly collective invoice) will be communicated to the customer by SMD-Pharma at its own discretion immediately after conclusion of the contract and in particular taking into account the existing customer relationship or the country of origin of the customer. If prepayment is chosen, SMD-Pharma is not obligated to perform until payment has been received.

2.9      Any confirmation of an order or delivery time by SMD-Pharma is made under the reservation that SMD-Pharma itself is supplied correctly and in time. In case of non-availability or late availability of the ordered goods and/or services, SMD-Pharma will inform the customer immediately. SMD-Pharma is entitled to make partial deliveries. A withdrawal can always only be made with regard to that (partial) performance with the provision of which SMD-Pharma is in default.

2.10    Events of force majeure, in particular pandemics, strikes, natural disasters, war, general supply difficulties, political entanglements (e.g. riots), and disruptions at transport companies, release SMD-Pharma from the obligation to provide services for the duration of the disruption and to the extent of its effects. Claims of the customer against SMD-Pharma are excluded as a result of such events (e.g. delay in service provision). Such events also entitle SMD-Pharma to withdraw from the contract if the events are of such long unforeseeable duration that the purpose of the ordered goods and/or services is endangered. SMD-Pharma is entitled to make partial deliveries.

  1. PRICES, ANCILLARY COSTS, INVOICES AND OBLIGATION TO GIVE NOTICE OF DEFECTS

3.1      Deliveries shall generally be invoiced at the prices valid at the time of commissioning of the goods. Procurement, packaging and transport costs as well as insurance charges, customs duties, fees and charges for deliveries abroad shall be invoiced separately. Unless expressly stated otherwise, all prices quoted by the entrepreneur are exclusive of value added tax.

3.2      Objections against the contents of a delivery bill, an invoice or the complete or undamaged receipt of the goods shall be raised and specified immediately upon receipt of the goods. If the customer does not raise objections within one week (i) after receipt of the goods or (ii) after actual recognition or, with the application of due diligence, the need to recognize a hidden defect, the contents of the delivery bills or invoices shall be deemed to be confirmed and the goods shall be deemed to have been accepted properly, completely and undamaged. Claims against SMD-Pharma can no longer be asserted after the expiry of this period in accordance with § 377 para. 2 Austrian Commercial Code (hereinafter UGB).

3.3      If the Customer has an e-mail address, the invoices may be sent with a digital signature by e-mail as an attachment after prior notice. The Customer agrees to this form of electronic invoicing.

  1. SHIPPING, TRANSFER OF RISK AND PACKAGING

4.1      The customer has to provide facilities or parking possibilities for the delivery of the goods, which guarantee at any time that an access of unauthorized third parties to the delivered goods is excluded. The mode of shipment is chosen by SMD-Pharma. Risk and danger are transferred from SMD-Pharma to the customer as a result of handing over the goods to the carrier at the place of performance (see point 4.4).

4.2      If the goods have not been accepted by the customer and if a storage facility has not been created (default of acceptance), SMD-Pharma is entitled to either store the goods on its premises, for which SMD-Pharma can charge a storage fee of 5% of the gross invoice amount per calendar day or part thereof, or to store the goods at the expense and risk of the customer with an authorized tradesman. At the same time SMD-Pharma is entitled either to insist on fulfillment of the contract or to withdraw from the contract after setting a deadline of two weeks and to utilize the goods otherwise. The customer must reimburse SMD-Pharma for the costs incurred by this immediately after invoicing.

4.3      Withdrawal from the contract by the customer due to delay in delivery is only possible by setting a reasonable – at least 4-week – grace period. The withdrawal shall be asserted by registered letter. The right of withdrawal refers only to the part of the delivery or service for which there is a delay. The liability of SMD-Pharma for damages caused by delay is limited to 0.5% of the value of the delivery in delay, but not more than 3% of the value of that part of the delivery which was not delivered in time.

4.4      The place of performance is the registered office of SMD-Pharma.

4.5      The shipping containers owned by SMD-Pharma (transport boxes, special cartons, etc.) must be returned immediately to SMD-Pharma at its own expense.

  1. WARRANTY AND COMPENSATION FOR DAMAGES

5.1      In the case of warranty, SMD-Pharma is entitled to determine the type of warranty itself, provided that objections have been raised in due time (see point 3.2). For actually objectified defects, SMD-Pharma shall first provide warranty by means of subsequent performance, which, at the option of SMD-Pharma, consists of rectification or replacement. If the subsequent performance fails, the customer can in principle demand a reduction of the purchase price (price reduction) or the cancellation of the contract (redhibitory action) according to his choice. The right to price reduction or cancellation is excluded as long as SMD-Pharma is not in default with the supplementary performance for reasons for which it is responsible. Even in the event of failure of subsequent performance, the customer is only entitled to a price reduction and no right to rescission if the defect is not minor.

5.2      The presumption pursuant to § 924 2nd sentence Austrian General Civil Code (hereinafter ABGB) as well as § 933b ABGB are expressly excluded.

5.3      The warranty period for defective goods shall be 3 months after acceptance of the goods. As far as legally permissible, a defect of a medicinal or medical product covered by the contract shall only exist if a recall of an entire batch of the medicinal or medical products by the manufacturer occurs. Manufacturer’s guarantees remain unaffected by this. The technical processing of goods returns within the scope of the warranty or for other reasons is carried out on the basis of the respective rules for goods returns of SMD-Pharma known to the customer.

5.4      SMD-Pharma shall only be liable for damages, as far as legally permissible, if they were caused intentionally or due to gross negligence. Liability for damages caused by slight negligence is excluded, with the exception of personal injury. Furthermore, SMD-Pharma is not liable for indirect damages, consequential damages, damages from third party claims and/or lost profits. In case of gross negligence, the liability is limited to the value of the delivery of goods, but not more than the amount covered by the insurance of SMD-Pharma.  The existence of slight or gross negligence has to be proved by the injured party. For goods ordered by the customer, which are to be delivered abroad, the respective customer undertakes to arrange for the professional collection of the goods at the registered office of SMD-Pharma [by a forwarding agent qualified to do so] within [1] week after conclusion of the contract, with prior notification in good time. With the handover of the goods to the forwarder, the contract is considered fulfilled on the part of SMD-Pharma and all risks in connection with the contract are transferred to the customer at this time.

5.5      SMD-Pharma assumes no liability as a result of incorrect or outdated information provided by the customer during registration (see point 2.1) and/or ordering (see point 2.4) in the webshop. The customer indemnifies and holds SMD-Pharma harmless for all claims against SMD-Pharma in this context.

  1. LIABILITY FOR OTHER BREACHES OF DUTY

In particular, liability on the part of SMD-Pharma for the so-called “Beipack.Service”, in which goods are picked up and / or delivered to customers by SMD-Pharma on behalf of third parties (including other customers) and / or the customer himself, is excluded.

  1. PAYMENT OF THE PURCHASE PRICE, PROHIBITION OF SET-OFF AND ASSIGNMENT

7.1      Purchase price payments are due upon receipt of the invoice. If the customer does not pay the invoice amount within 14 days after receipt of the invoice or on the agreed due date, SMD-Pharma can demand interest on arrears from the due date in the amount of eight percentage points above the respective base interest rate p.a. as well as compound interest in the same amount. Offsets against claims of SMD-Pharma are only permitted with undisputed or legally established counterclaims, as is the exercise of a right of retention without a legally established title or based on claims from other legal transactions. If the customer does not pay on time, does not pay unconditionally and/or completely, SMD-Pharma is entitled to stop its further supply immediately, unless SMD-Pharma expressly agrees to a later payment of the purchase price, the reservation (see point 8) and/or the reduction of the payment of the purchase price.

7.2      The assignment of individual rights and obligations under these GTC shall only be permitted with the express written consent of the other contracting party.

  1. RESERVATION OF OWNERSHIP

8.1      SMD-Pharma retains title to the goods delivered by it until full payment of all claims arising from the business relationship with the customer, including ancillary claims. The customer is not entitled to pledge the goods to third parties or to assign them as security. However, he may sell the goods in the ordinary course of business and assigns to SMD-Pharma any claims against third parties arising from the resale as security for all claims against him at the time of the conclusion of the contract.

8.2      The customer shall comply with the labeling obligations and other formal requirements to preserve SMD-Pharma’s retention of title.

8.3      In the case of an even partial delay in payment, SMD-Pharma is entitled to collect the delivered goods in a reasonable manner, even without the customer’s consent, at the customer’s expense. Accordingly, in such a case, SMD-Pharma must be granted direct access to the goods delivered by it at the customer’s premises. In case of seizure or other claim, the customer is required to point out SMD-Pharma’s right of ownership and to notify SMD-Pharma immediately.

8.4      The customer shall bear the full risk for the reserved goods, in particular for the risk of destruction, loss or deterioration.

  1. CONTRACTOR’S RIGHT OF WITHDRAWAL/UNAUTHORIZED WITHDRAWAL BY THE CUSTOMER

9.1      If a delivery is not possible as a result of delivery difficulties and/or price increases at our upstream suppliers or at the producer, we shall be entitled to withdraw from the contract without any obligation to pay compensation.

9.2      If the Customer – without being entitled to do so – withdraws from the contract or requests its cancellation, the Contractor shall have the choice of insisting on the performance of the contract or agreeing to the cancellation of the contract; in the latter case, the Customer shall be obliged to pay, at the Contractor’s option, liquidated damages amounting to 15% of the gross invoice amount or the actual damage incurred.

  1. APPLICABLE LAW AND PLACE OF JURISDICTION

10.1    These GTC as well as the contract concluded between SMD-Pharma and the customer are subject to Austrian law, excluding the reference norms of the Austrian IPRG and the provisions of the UN Sales Convention.

10.2    For all disputes arising from or in connection with these GTC as well as with the contract concluded between SMD-Pharma and the customer, the exclusive jurisdiction of the court having subject-matter jurisdiction for Korneuburg is agreed.

  1. DATA PROTECTION

11.1    Data protection and data security are part of the corporate policy of SMD-Pharma. SMD-Pharma always processes the personal data received about the customer in connection with the business relationship, regardless of whether these data originate from the customer himself or from third parties, in accordance with the applicable data protection regulations.

11.2    Based on the statutory data protection provisions, the customer shall have the right to information, deletion, data portability, restriction of processing, correction of data and the right to object to the processing of personal data. The customer can exercise these rights by sending an e-mail to office@smd-pharma.at to Mag. Pharm. Daee. The customer can obtain further information on data protection at https://smd-pharma.at/datenschutzerklaerung/.

  1. SEVERABILITY CLAUSE

Should individual provisions of these GTC be invalid or unenforceable in whole or in part, the remaining provisions shall remain valid. SMD-Pharma and the customer undertake, in the event that individual provisions are invalid or unenforceable, to replace the invalid or unenforceable provisions with provisions that correspond as closely as possible to the content and purpose of the invalid or unenforceable provisions.

  1. VALUABILITY

 The above GTC shall apply as of 21/12/2021.