General Terms and Conditions of PXG Pharma GmbH

Terms of service

1.    Scope
1.1   The following General Terms and Conditions (hereinafter referred to as "GTC") shall apply exclusively to all - including future - deliveries to our customers. General terms and conditions of our customers shall only apply if we agree to them in writing.
1.2   We are entitled to amend these GTC. Amendments shall become effective from the date of their validity if our customer does not object within a period of six weeks after notifica-tion of the amendment. We shall expressly point out this consequence to our customer upon notification of the amendment.
1.3    Future oral ancillary agreements must be in writing to be effective, unless they are based on an individual contractual agreement. This shall also apply to the amendment or can-cellation of this written form clause.

2.    Contract conclusion
2.1    Our offers are subject to change without notice and are non-binding unless they are ex-pressly marked as binding or contain a specific acceptance period. The respective con-tract shall only be concluded by our order confirmation or by shipment of the goods. View samples are not binding.
2.2    The acceptance of deliveries by our customer is a primary obligation.
2.3    We reserve ownership rights and industrial property rights and copyrights in our favor to illustrations, view samples, drawings, calculations and other documents prepared by us or at our instigation. This shall also apply to other written documents designated as "confidential". Our express written consent is required before they are passed on to third parties.
2.4    Any free right of termination of the Customer (in particular pursuant to §§ 650, 648 Ger-man Civil Code) shall be excluded.

3.    Prices and terms of payment
3.1    Unless otherwise agreed or stated, prices shall be calculated at the prices applicable on the date of the order plus the statutory value-added tax applicable on the date of the or-der. Unless otherwise agreed, our prices shall apply "ex warehouse", excluding packaging and transport; these costs shall be invoiced separately, if applicable.
3.2    Payments shall be made free of charge unless otherwise agreed or stated on the invoice. Our invoices shall be due for payment within 30 days from the invoice date without de-duction, unless another due date is stated on the invoice. The date of receipt of payment by us shall be decisive. 
3.3    The customer revocably consents to us transmitting our invoices to him electronically. The customer may revoke his consent at any time by written declaration to us.
3.4    Our invoices shall be deemed accepted in each case if they are not objected to within four weeks of receipt. 
3.5    We reserve the right to charge the default interest to which we are entitled in the event of default in payment. The right to claim further damages caused by default shall not be af-fected by this provision. 
3.6    If the customer is in arrears with a due payment or if we have reasonable doubts about the customer's creditworthiness, we may demand advance payment for outstanding de-liveries, forfeiting the term of payment. In addition, we may withdraw from all existing contracts in whole or in part. The delivery period for all goods not yet delivered shall be extended until payment has been made in full. We shall also be entitled to demand secu-rity for our claims which we deem sufficient. If the customer does not comply with this, we may declare all our claims due immediately.
3.7    The customer shall only be entitled to offset against our payment claims or to exercise rights of retention if its claim against us is undisputed or has been legally established; this restriction shall not apply to counterclaims arising from the specific contractual re-lationship.

4.    Delivery
4.1    The choice of packaging material and packaging shall be at our discretion. Delivery shall be made on the basis of the Incoterms EXW of our warehouse. The transfer of risk to the customer shall take place irrespective of whether the costs of transport are charged to the customer by us and irrespective of whether we have commissioned the carrier. If we commission the carrier, the selection shall be made at our best discretion.
4.2    We undertake to take out, at the customer's expense, such insurance as the customer may require.
4.3    Partial and advance deliveries are permissible to the extent reasonable for the customer.
4.4    The start of the delivery period specified by us requires the prior clarification of all tech-nical issues in cooperation with the customer.
4.5    Compliance with a binding delivery date specified by us is subject to correct and timely delivery to us. We shall inform you as soon as possible of any delays that become appar-ent. Compliance with our delivery obligations shall further be subject to the timely and proper fulfillment of the customer's obligations. We reserve the right to plead non-performance of the contract. If a delivery date is not met for reasons for which we are re-sponsible, the customer shall set us a reasonable grace period in writing, unless this is exceptionally dispensable. After fruitless expiry of the deadline, the customer shall only have the right to withdraw from the contract. This shall not apply if claims for compensa-tion of damages of our customer exist due to slightly negligent breach of an essential contractual obligation (i.e. an obligation, the fulfillment of which enables the proper exe-cution of the contract in the first place and on the compliance with which the customer may regularly rely). In this case, damages shall be limited to the foreseeable damage typi-cal for the contract.
4.6    If the customer is in default of acceptance or culpably violates other obligations to coop-erate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. Further claims or rights remain reserved.
4.7    All cases of force majeure, lockout, industrial action, official measures, operational or traffic disruptions through no fault of our own, pandemics/epidemics (such as COVID-19), fire, floods, water damage, shortage of energy or raw materials and similar obstacles for which we are not responsible or which we cannot influence (and which cannot be averted even by exercising due care) shall entitle us to postpone delivery to a reasonable extent and for a reasonable period of time, at least for the duration and scope of such obstacles. In such cases, our customer shall have no rights or claims on account of late delivery. If the aforementioned circumstances lead to a final impediment to performance, we shall be entitled to withdraw from the contract. 

5.    Notification of defects and warranty
5.1    The commercial obligations to inspect and give notice of defects shall apply. The defec-tive delivery items shall be kept ready for inspection by us in the condition in which they are at the time of discovery of the defect. If the delivery is made by a forwarding agent, external damage to the packaging material and other transport damage in particular must be noted in the consignment note.
5.2    If there is a defect in the delivery item, we shall, at our discretion, either deliver defect-free goods or remedy the defect. In the event of rectification of the defect, we shall be obliged to bear all expenses necessary for the purpose of rectifying the defect, in par-ticular transport, travel, labor and material costs, insofar as these are not increased by the fact that the purchased item was transported to a place other than the place of per-formance. 
5.3    If the supplementary performance fails, the customer shall be entitled to withdraw from the contract or to demand a reduction in price at its discretion if the statutory require-ments are met.
5.4    The limitation period for claims for defects is 12 months, calculated from the transfer of risk.
5.5    The limitation period in case of a delivery recourse according to §§ 445a, 445b, 478 Ger-man Civil Code remains unaffected.
5.6    Unless otherwise agreed in writing, we do not assume any contractual warranty beyond the statutory warranty rights; the technical data and descriptions do not constitute war-ranties.

6.    Liability
6.1    We shall be liable in accordance with the statutory provisions insofar as the customer asserts claims for damages based on intent, gross negligence or the breach of a material contractual obligation by us, our representatives or our vicarious agents.
6.2    In the event of culpable breach of a material contractual obligation, liability shall be lim-ited to the foreseeable, typically occurring damage. In the event of culpable breach of non-contractual obligations, liability shall be limited to the order value.
6.3    Liability for culpable injury to life, limb or health shall remain unaffected; this shall also apply to mandatory liability under the Product Liability Act.
6.4    Unless otherwise stipulated above, liability is excluded. This also applies to liability claims of a non-contractual nature, e.g. from tort.
6.5    Insofar as our liability for damages is excluded or limited, this shall also apply with re-gard to the personal liability for damages of our employees, representatives and vicarious agents.
6.6    The warranty liability does not apply in case of improper storage (e.g. humidity, opening of the protective foils/packaging) and in case of defects that can be traced back to incor-rect advice given by the customer. The customer has the right to prove that these cir-cumstances did not cause the defect.

7.    Rescission
7.1    We shall be entitled to withdraw from the contract in the event of non-delivery, incorrect delivery or late delivery by our suppliers.
7.2    We shall be entitled to withdraw from the contract if the customer has submitted an affi-davit in accordance with § 807 of the German Code of Civil Procedure (ZPO), an applica-tion has been made to open insolvency proceedings against his assets, insolvency pro-ceedings have been opened against his assets or the opening of insolvency proceedings has been rejected for lack of assets.

8.    Retention of title
8.1    The goods delivered by us shall remain our property (hereinafter referred to as "Reserved Goods") until all liabilities - including future liabilities - arising from the business rela-tionship with our customer, including all ancillary claims, interest and costs, have been settled in full.
8.2    Our customer is revocably entitled to process, combine or mix the Reserved Goods in the ordinary course of business. Our customer shall carry out the processing of the Reserved Goods on our behalf. Our customer shall indemnify us for any liability arising from the processing, in particular from claims of third parties. In the event of processing, combin-ing or mixing with goods which are not our property (hereinafter referred to as "Third-party Goods"), we shall acquire co-ownership of the new item at the time of processing, combining or mixing in the ratio of the value of the Reserved Goods to that of the Third-party Goods. If our customer acquires sole ownership of the new item, we agree with him that he transfers co-ownership to us in the aforementioned value ratio already now. The new item shall be deemed to be Reserved Goods within the meaning of Section 8.1 and shall be held in safe custody for us by our customer free of charge.
8.3    Our customer is entitled to sell the Reserved Goods in the ordinary course of business. He hereby assigns to us by way of security the claims to which he is entitled against his customers or third parties from the resale of the Reserved Goods. In the event of the sale of goods processed, combined or mixed with Third-party Goods, our customer shall as-sign to us the claim to which he is entitled in the amount corresponding to our co-ownership share. If our customer sells Reserved Goods together with Third-party Goods, the purchase price claim shall be deemed assigned in the amount of the value of the Re-served Goods. We accept these assignments. Our customer shall be entitled to collect the claims for our account. We may revoke the authorizations pursuant to Clause 8.3, Sen-tences 1 and 6 if our customer fails to duly comply with its contractual obligations. If the claims assigned to us by way of security are disputed by the third-party debtor or are not satisfied for other reasons, our customer shall collect the assigned claims at our ex-pense.
8.4    The transfer of claims to a current account, the balancing as well as the recognition of the balance shall not affect the agreed retention of title as well as the assignment of claims. They shall then serve as security for our balance claim.
8.5    If the value of the securities obtained through the extended retention of title and the as-signment of claims exceeds our claims by more than 10%, we shall release the excess part of the securities at the request of our customer, whereby we shall be entitled to se-lect the goods or claims to be released.
8.6    We may revoke the authorization to process, combine or mix with Third-party Goods, to collect receivables or to sell Reserved Goods in the ordinary course of business if our customer culpably fails to meet its payment obligations. Upon revocation, we shall be entitled to remove the Reserved Goods from our customer's possession and to transfer them or have them transferred to another location. For this purpose, we shall in particular be entitled to enter the land and buildings of our customer. 
8.7    The encumbrance of the Reserved Goods with the rights of third parties, in particular pledging and transfer of ownership by way of security to third parties, requires our prior written consent.
8.8    Our customer shall notify us without delay if our rights to the Reserved Goods should be impaired or endangered by measures of execution or other measures of third parties. He shall inform the third party of our rights in due time. The same shall apply if claims as-signed to us are impaired by seizure or other measures of third parties.
8.9    After taking back the object of sale, we shall be entitled to realize it; the proceeds of re-alization shall be credited against the customer's liabilities - less reasonable costs of re-alization.
8.10    The customer is obligated to handle the purchased goods with care until the transfer of ownership; in particular, he is obligated to sufficiently insure them at his own expense against fire, water and theft at replacement value. For the duration of the retention of ti-tle, the customer shall bear the risk of the goods, in particular the risk of loss, accidental destruction or accidental deterioration.

9.    Compliance
9.1    Our customer assures that during the business relationship existing with us he will en-sure compliance with the applicable laws, in particular with regard to anti-corruption, an-ti-trust, anti-money laundering and foreign trade legislation. In the event of non-compliance, we shall be entitled to terminate the business relationship without notice

10.    Data protection
10.1    The following conditions apply to the data processing operations in which we process personal data of customers, their contacts and employees as a responsible entity. The customer remains responsible for compliance with the applicable regulation of data pro-tection for the personal data processed by him.
10.2    We process personal data in accordance with applicable law, in particular in compliance with European data protection regulations and national regulations (including the BDSG (Federal Data Protection Act), as amended). We oblige all order processors who process personal data on our behalf to also comply with these regulations. Appropriate commis-sioned data processing contracts are concluded for this purpose in accordance with Art. 28 GDPR. Personal data is also partly processed in countries outside the European Union or the European Economic Area pursuant to Art. 44 et seq. GDPR are processed. In these cases, we ensure, e.g. via the appropriate and current standard contractual clauses for data transfers between EU and non-EU countries (EU SCC), that a sufficient level of data protection is guaranteed for this personal data.
10.3    Insofar as permitted without consent, we contact our customers for the purpose of mar-keting. The customer has the right to object to this processing at any time with effect for the future in accordance with Art. 21 GDPR. Further information on the information obli-gations pursuant to Art. 12 et seq. GDPR as well as data subject rights according to Art. 15 ff. GDPR you can request from us. 
10.4    In accordance with legal requirements, we are entitled to transfer personal data to affili-ated companies of the PHOENIX group within the meaning of the German Stock Corpora-tion Act for internal administrative purposes. Personal data may also be disclosed to third parties (e.g. lawyers, auditors, banks, insurance companies, law enforcement agencies, etc.) if there is a legitimate interest pursuant to Art. 6 (1) sentence 1 lit. f GDPR or a legal obligation (processing pursuant to Art. 6 (1) sentence 1 lit. c GDPR). Furthermore, we may disclose personal data to third parties if this is necessary for the performance of a con-tract (processing according to Art. 6 para. 1 p. 1 lit. b GDPR).
10.5    We regularly train and obligate employees to comply with data protection requirements. Technical and organizational measures within the meaning of the GDPR for the security of processing have been taken and documented and can be viewed in accordance with Art. 5 of the GDPR. We will be happy to provide you with further information on the processing of personal data and the contact details of the data protection officer on request. 

11.    Place of jurisdiction, applicable law
11.1    The place of performance for both contracting parties shall be Mannheim.
11.2    The place of jurisdiction for all disputes arising from the delivery shall be Mannheim. 
11.3    The law of the Federal Republic of Germany shall apply; the application of the UN Con-vention on Contracts for the International Sale of Goods is excluded.

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PXG Pharma GmbH, Pfingstweidstraße 10-12, 68199 Mannheim, Germany (Version: 01.2022)