1. General, Scope of Application
(1) These General Conditions of Sale apply to the sale and delivery of medicinal products from Cannamedical Pharma GmbH, Im Mediapark 8, 50670 Cologne, Germany to the customer. They also apply to all future deliveries, services, and offers even if not expressly agreed upon again.
(2) The terms and conditions of the customer do not apply even if Cannamedical Pharma GmbH does not specifically object to their validity in individual cases. Even if Cannamedical Pharma GmbH refers to correspondence which contains terms and conditions of the customer or makes mention of such, this does not suggest any consent to their validity.
2. Offers and Conclusion of Contract
(1) All offers made by Cannamedical Pharma GmbH are subject to change and are non-binding, unless they are expressly confirmed as binding or include a specific term of acceptance.
(2) The legal relationship between Cannamedical Pharma GmbH and the customer is defined exclusively by the purchase contract, including these General Conditions of Sale. This contains all agreements between the contracting parties relating to the object of the agreement. Verbal commitments made by Cannamedical Pharma GmbH before concluding this contract are not legally binding and verbal agreements between the contracting parties are replaced by the contract unless it is expressly stated therein that they will continue to apply.
(3) Additions or amendments to the agreements concluded including these General Conditions of Sale must be submitted in writing to take effect. With the exception of directors or authorised staff, employees of Cannamedical Pharma GmbH may not conclude any conflicting verbal agreements. Confirmation by telecommunication is sufficient to meet the requirement of the written form, in particular by fax or email, provided that a copy of the signed declaration is sent.
(4) A customer order shall only then be accepted by Cannamedical Pharma GmbH if expressly confirmed verbally or in some other way or if handled by way of delivery.
(5) Illustrations, drawings, calculations, and other documents may not be made available to third parties. In particular, written documents and – also verbal – information specified as “confidential” may not be forwarded to third parties without the express written consent of Cannamedical Pharma GmbH.
3. Burden of Proof, Duty of Disclosure, and Duty to Confirm of the Customer
(1) Before every delivery, the customer is duty-bound to provide Cannamedical Pharma GmbH with official records verifying that they are permitted to operate a pharmacy pursuant to Section 1 (1) of the Pharmacy Act (ApoG) or that they are permitted to operate a dispensary pursuant to Section 14 (1) of the ApoG and, if applicable, to provide the official permit of the hospital supply contract pursuant to Section 14 (4/5) of the ApoG, plus the official narcotics number of the Federal Opium Agency by fax or email. Such customer records may not be out of date; that is, the customer’s current company name and address must be included. Cannamedical Pharma GmbH may withhold delivery until the required documents are provided. Cannamedical Pharma GmbH may withdraw from the contract if the customer, despite being requested to do so, fails to submit the relevant documents within seven days.
(2) The customer shall notify Cannamedical Pharma GmbH immediately if the permit specified in Paragraph 1 has expired or if the hospital supply contract has ended or if permission from the official authority is no longer valid.
(3) The customer shall return the acknowledgement of receipt – duly completed and signed or submitted with an electronic signature – pursuant to Section 2 of the Ordinance on the Domestic Trade in Narcotic Drugs (BtMBinHV) to Med-X-Press in Goslar, the storage provider of Cannamedical Pharma GmbH, at the latest on the working day following receipt of the narcotics.
4. Prices, Additional Costs
(1) The pharmacy purchase prices are calculated on the basis of the prices and conditions valid on the order date, unless agreed or specified otherwise.
(2) The prices do not include statutory VAT. Additional costs such as delivery costs or costs for special safeguards or security measures that are billed separately in the invoice shall be borne by the customer. The customer shall only pay for packaging if they are invoiced for this.
(3) Transport containers, coolers, and other returnable packaging shall remain the property of Cannamedical Pharma GmbH. Such items or materials must be handled with care and returned immediately. They may only be used in the context of the trade of goods between Cannamedical Pharma GmbH and the customer.
5. Invoicing, Terms of Payment
(1) In principle, invoices are created after every delivery. The customer must check all invoices and statements to ensure that they are correct and complete. Objections to invoices must be submitted in writing within a month of receipt. Any objections sent after this period shall not be considered and invoices shall be deemed approved. Other objections must be submitted immediately.
(2) Cannamedical Pharma GmbH shall include applicable statutory VAT in the customer’s invoice for services rendered. Unless agreed otherwise, the invoice amount must be transferred to the account specified in the invoice – without deductions – within 30 days with the invoice number specified. If payments are to be made by SEPA direct debit, the period for pre-notification regarding the date for debiting the account (pre-notification period) is shortened to two working days. Payments by cheque or bill of exchange are not accepted. Date of payment is based on receipt at Cannamedical Pharma GmbH. If the customer is in default with payment, interest shall be paid on overdue amounts at a rate of 5% per annum from the due date; the assertion of higher interest rates and further damages in the event of default shall remain unaffected.
(3) If the customer is in default with their payment obligations, if they stop making payments, or if judicial insolvency proceedings are initiated or if this is requested by the customer, then all claims from the business relationship with respect to deliveries already made by Cannamedical Pharma GmbH shall be payable immediately.
(4) Compensation from customer counterclaims or retention of payments due to such claims is only permitted if such counterclaims are undisputed or legally binding. The customer’s reciprocal rights shall not be affected in the event of defective deliveries.
6. Delivery and Delivery Time
(1) Goods are delivered ex stock unless agreed otherwise. The shipping method and packaging type are chosen at the due discretion of Cannamedical Pharma GmbH. Goods are shipped without insurance.
(2) Risk is transferred to the customer no later than the date on which the goods are handed over (determined by the date on which loading commences) to the carrier, freight forwarder, or any other third party assigned to the shipment. This also applies if partial deliveries are made or Cannamedical Pharma GmbH performs other services (e.g. dispatch). If the shipment or handover is delayed due to circumstances within the customer’s control, risk shall be transferred to the customer from the date on which the goods are ready for dispatch and Cannamedical Pharma GmbH has notified the customer to this effect.
(3) Dates and deadlines for deliveries and services proposed by Cannamedical Pharma GmbH are always only approximate dates, unless a fixed date or deadline has been expressly consented to or agreed upon. If a shipment has been agreed, delivery dates and deadlines are based on the date on which the goods are handed over to the carrier, freight forwarder, or third party assigned to the task. Cannamedical Pharma GmbH may also deliver the goods before the agreed delivery date. Cannamedical Pharma GmbH may deliver the goods immediately if no delivery date has been agreed.
(4) Cannamedical Pharma GmbH shall not be liable for deliveries that cannot be fulfilled or are delayed as a result of force majeure or other events that were not foreseeable at the time the contract was concluded (e.g. all forms of disruption in operations, difficulties with the supply of materials or energy, delays in transportation, strikes, legitimate lockouts, shortage of labour, energy, or raw materials, difficulties in acquiring the necessary official permits, measures imposed by official bodies or institutions, failure to deliver or failure to deliver promptly by suppliers or incorrect deliveries by suppliers), for which Cannamedical Pharma GmbH is not responsible. Cannamedical Pharma GmbH may withdraw from the contract if such events make it extremely difficult or even impossible for goods or services to be delivered and such impediments are not likely to be of a temporary nature. In the case of impediments of a temporary nature, the delivery/service deadlines shall be extended or delivery/service dates postponed for as long as the impediment lasts, plus an appropriate lead time. If, as a result of the delay, it would be unreasonable for the customer to accept the delivery, they can withdraw from the contract by immediately declaring this to Cannamedical Pharma GmbH in writing.
(5) Cannamedical Pharma GmbH may only make partial deliveries if
– the partial delivery is deemed useful to the customer within the scope of the contractually intended use;
– the delivery of any remaining goods ordered is ensured; and
– this does not result in any significant additional work or costs borne by the customer (unless Cannamedical Pharma GmbH expressly agrees to cover these costs).
(6) If Cannamedical Pharma GmbH is in default of delivery or if the delivery cannot be made for whatever reason, then they shall bear liability for compensation pursuant to Clause 9 of these General Conditions of Sale.
(7) If the customer is in default of acceptance or culpably violates other obligations to cooperate, Cannamedical Pharma GmbH shall be entitled to demand compensation for losses incurred, including any extra expenses. In this case, the risk of accidental loss or deterioration of goods shall also be transferred to the customer from the moment their delay in acceptance commences or they violate their obligations to cooperate and thus delay the shipment.
(8) Cannamedical Pharma GmbH shall be entitled to fulfil outstanding deliveries/services against prepayment or security payment only if, after concluding the contract, they become aware of circumstances which considerably diminish the customer’s creditworthiness and which might jeopardise payment of Cannamedical Pharma GmbH’s outstanding claims by the customer relating to the respective contractual relationship (including other individual orders arising from the same framework agreement). Cannamedical Pharma GmbH may withdraw from the contract if the customer, despite requests to issue a prepayment, to perform concurrently, or to provide a security payment, fails to fulfil their duties. Any serious deterioration of the customer’s financial situation must be reported by them immediately.
7. Retention of Title
(1) The retention of title agreed below serves to protect all existing current and future claims of Cannamedical Pharma GmbH against the customer arising from the existing delivery relationship between the contracting partners.
(2) Goods delivered by Cannamedical Pharma GmbH to the customer shall remain the property of Cannamedical Pharma GmbH until all secured claims have been paid for in full. The goods plus those in lieu thereof covered by the retention of title in accordance with the following provisions shall hereinafter be referred to as “reserved goods”.
(3) The customer shall store the reserved goods free of charge for Cannamedical Pharma GmbH.
(4) The customer may process and sell the reserved goods in the ordinary course of business until enforcement (Paragraph 9) has occurred. Pledges and transfers by way of security are not permitted.
(5) If the reserved goods are processed by the customer, it is hereby agreed that such processing shall be carried out on behalf of and for the account of Cannamedical Pharma GmbH as the manufacturer, and that Cannamedical Pharma GmbH shall directly obtain ownership or – if goods are processed using materials from several owners, or if the value of the processed goods is higher than the value of the reserved goods – co-ownership (partial ownership) of the newly produced goods, proportionally in relation to the value of the reserved goods compared with the value of the newly produced goods. If Cannamedical Pharma GmbH does not obtain such ownership, the customer shall hereby transfer their future ownership, or – as stated above – co-ownership, of the newly produced goods to Cannamedical Pharma GmbH by way of security. If the reserved goods are combined with other goods to form a uniform object, or if they are inseparably compounded, and one of the other goods is to be regarded as the main object, the customer, to the extent that they are the owner of the main object, shall hereby proportionally transfer co-ownership of the uniform object to Cannamedical Pharma GmbH as stipulated in Sentence 1.
(6) In the event that the reserved goods are sold on, the customer hereby assigns any resulting claims against the purchaser – in the case of the customer’s co-ownership of the reserved goods, in proportion to their share in the co-owned goods – to Cannamedical Pharma GmbH as security. The same applies to other claims that may take the place of the reserved goods or that may otherwise pertain to the reserved goods, such as e.g. insurance claims or claims arising from tort law in the event of loss or destruction. Cannamedical Pharma GmbH hereby authorises the customer on a revocable basis to collect any claims transferred to Cannamedical Pharma GmbH on their own behalf. Cannamedical Pharma GmbH may only revoke this authorisation to collect in the event of enforcement.
(7) Should third parties claim possession of the reserved goods, especially in the event of seizure, the customer must immediately indicate Cannamedical Pharma GmbH’s ownership and inform Cannamedical Pharma GmbH so that they can assert their rights of ownership.
(8) Cannamedical Pharma GmbH shall release the reserved goods plus any other items or claims in lieu thereof if their value exceeds the value of the secured claims by more than 50%. Cannamedical Pharma GmbH chooses which items are to be released thereafter.
(9) If Cannamedical Pharma GmbH withdraws from the agreement (enforcement) because the customer is in breach thereof – e.g. default in payment in particular – they shall be entitled to demand that the reserved goods be returned.
8. Warranty, Material Defects
(1) The warranty period is one year from the date of delivery or, if acceptance is required, from the date of acceptance. This period shall not apply to claims for damages on the part of the customer resulting from injury to life, body, or health, or from wilful or grossly negligent breach of duty by Cannamedical Pharma GmbH or their vicarious agents, which are subject to the limitation periods under the statutory provisions.
(2) The goods delivered must be carefully inspected immediately after delivery to the customer or to the third party designated by the customer. With regard to obvious defects or other defects, which would have been detected if examined immediately and carefully, goods shall be deemed approved by the customer if Cannamedical Pharma GmbH does not receive written notification of defects within seven working days after delivery. With regard to other defects, goods shall be deemed approved by the customer if the complaint is not received by Cannamedical Pharma GmbH within seven working days after the date on which the defect was detected; if the customer notices the defect in normal use at an earlier date, this date shall be taken as the start date for the complaint period.
(3) In case of defects in quality of the delivered goods, Cannamedical Pharma GmbH shall be obliged or entitled, at their discretion, either to remedy the defect or to deliver substitute goods within a reasonable period of time. If the rectification of defects or substitute delivery fails, i.e. if such measures are impossible, unacceptable, refused, or unreasonably delayed, the customer may withdraw from the contract or expect a reasonable reduction in the purchase price.
(4) If the defect was caused due to a fault of Cannamedical Pharma GmbH, the customer may claim damages under the prerequisites set forth in Clause 9.
(5) The warranty shall cease to apply if the customer modifies, or permits a third party to modify, the delivered goods without the consent of Cannamedical Pharma GmbH, and if this makes any rectification of defects impossible or unreasonably difficult. In any case, the customer shall bear any additional costs arising from the rectification of defects caused by such action.
9. Liability for Damages in Case of Fault
(1) Cannamedical Pharma GmbH’s liability for damages, irrespective of their legal grounds, particularly based on impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations in the event of contract negotiations and tort, shall be subject to the limitations pursuant to this clause (Clause 9) insofar as it is Cannamedical Pharma GmbH’s fault.
(2) Cannamedical Pharma GmbH shall not be liable in case of ordinary negligence on the part of its executive bodies, legal representatives, employees, or other vicarious agents unless contractual obligations are violated. Contractual obligations mean any obligations to complete the delivery in due time, to deliver the goods free of defects of title and those material defects which considerably impair functionality or usability, as well as obligations to provide advice and protection, and to exercise proper care, all of which are supposed to enable the customer to use the delivered goods in accordance with the contractual purpose or aim at the protection of the customer’s staff’s body or life or the protection of their property against material damage.
(3) To the extent that Cannamedical Pharma GmbH is liable for damages pursuant to Clause 9 (2), such liability shall be limited to damages which Cannamedical Pharma GmbH could have foreseen when the contract was concluded as a possible consequence of a contractual breach or which could have been foreseen applying due diligence. Indirect damages and consequential damages based on defects in the delivered goods shall only be eligible for compensation to the extent such damages can be typically expected if the delivered goods are used for their intended purpose.
(4) The above exclusions and limitations of liability shall accordingly apply in favour of Cannamedical Pharma GmbH’s executive bodies, legal representatives, employees, or other vicarious agents.
(5) The limitations under this clause (Clause 9) shall not apply to Cannamedical Pharma GmbH’s liability based on wilful conduct, for guaranteed quality characteristics, based on an injury to life, body, or health, or under the German Product Liability Act.
10. Closing Provisions
(1) The place of performance for all obligations resulting from the contract is Cologne, Germany unless agreed otherwise.
(2) If the customer is an entrepreneur, a legal entity under public law, or a special fund under public law, or if the customer has no general court of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for all disputes arising from the business relationship between Cannamedical Pharma GmbH and the customer shall be Cologne, Germany. This provision does not affect statutory provisions regarding exclusive places of jurisdiction.
(3) The relationships between Cannamedical Pharma GmbH and the customer are subject exclusively to the laws of the Federal Republic of Germany, to the exclusion of the UN Sales Law (Convention of Contracts for the International Sales of Goods, CISG).
(4) In the event that the contract or these General Conditions of Sale do not contain a required provision, such legally valid provisions shall be deemed agreed upon to fulfil the gap which the contracting parties would have agreed according to the economic purpose of the contract and the General Terms of Delivery if they had been aware of the gap.
Note: The customer shall be deemed to have been notified that Cannamedical Pharma GmbH stores data relating to the contractual relationship pursuant to Section 28 of the German Federal Data Protection Act for the purpose of processing data and retains the right to disclose such data to third parties (e.g. insurance companies) if and to the extent that such disclosure is required to perform the contract.