Terms of sale & delivery
General Terms and Conditions (B2B)
ASD Pharma und Kosmetik Grosshandel GmbH — hereafter “ASD”.
Effective: August 2024
The German-language AGB is the legally binding version. This English text mirrors it clause by clause and is provided as a courtesy translation; in case of any discrepancy, the German version prevails.
1. Scope, parties, form
1.1 These terms govern all offers, sales, deliveries and other services provided by ASD to businesses (§ 14 BGB). ASD does not supply consumers.
1.2 Conflicting or supplementary terms of the customer do not become part of the contract unless ASD expressly agrees in writing (§§ 305 et seq. BGB).
1.3 Legally relevant declarations of the customer require at least text form (email is sufficient), unless statute mandates written form.
2. Formation, documents, changes
2.1 Offers by ASD are non-binding; a contract only comes into existence upon written order confirmation by ASD or delivery.
2.2 ASD reserves the right to reasonable technical and pharma-logistics changes to the goods delivered, provided that the agreed quality and suitability are not impaired.
2.3 Drawings, illustrations, specifications and certificates remain the property of ASD and may not be disclosed to third parties without consent.
3. Prices, surcharges, adjustments
3.1 Unless otherwise agreed, the net list prices applicable on the day of delivery apply, plus statutory VAT.
3.2 Additional charges may apply for cold-chain, dangerous-goods, express and small-quantity handling, as well as special security or delivery services.
3.3 Where ASD’s own costs increase by more than approximately 5 % between contract formation and delivery (raw materials, packaging, energy, transport, regulatory levies), ASD may adjust prices appropriately. If the cumulative increase exceeds 10 %, the customer may terminate the unfulfilled part of the contract.
4. Delivery, self-supply, partial deliveries
4.1 Deliveries are ex works / ex warehouse (place of performance). On request ASD arranges shipping at the customer’s cost and risk. Risk passes on handover to the carrier (§ 447 BGB).
4.2 Delivery periods are non-binding unless expressly confirmed in writing as binding.
4.3 Force majeure (pandemic, embargo, regulatory measures, strike, extreme weather) extends deadlines appropriately; claims for damages are excluded to that extent.
4.4 Reservation of self-supply: ASD may withdraw from the contract if, despite a proper covering transaction, its own supply fails through no fault of its own; the customer is informed without delay.
5. Packaging, loan containers
5.1 Transport containers, cold boxes and other loan packaging remain the property of ASD and must be returned within 4 weeks free of freight in usable condition; otherwise, compensation is charged.
5.2 One-way packaging: return is excluded; obligations under the German Packaging Act (VerpackG) are observed.
6. Default of acceptance, storage
6.1 If the customer fails to accept goods on time, the risk of accidental loss/deterioration passes on default of acceptance.
6.2 ASD may store the goods at the customer’s cost and risk and charge reasonable storage/handling fees.
7. Returns / recalls
7.1 Return of defect-free goods is excluded. In justified individual cases ASD may permit a return in writing subject to processing deductions.
7.2 For product- and drug-safety reasons, returns of temperature-controlled, sterile, sealed or expiry-dated products, and of medicinal products after opening, are excluded.
8. Inspection and notice of defects
The customer must inspect the goods without undue delay after delivery and give notice in text form: obvious defects immediately, other defects within 5 working days after delivery, hidden defects within 5 working days after discovery (§ 377 HGB). Failure to give timely notice deems the goods approved.
9. Warranty for defects, limitation period
9.1 In the case of timely and justified notice of defects, ASD provides supplementary performance at its own choice by repair or replacement (§ 439 (1) BGB).
9.2 ASD may refuse the type of supplementary performance chosen by the customer if it is only possible at disproportionate cost (§ 439 (4) BGB).
9.3 Reimbursement of expenses (in particular transport and material costs) is limited to what is reasonable and typical for the contract (§ 439 (2), (4) BGB).
9.4 Limitation period for defect claims: 12 months from delivery (§ 438 (1) no. 3 BGB), except in cases of intent and statutory exceptions (e.g. product liability).
9.5 Supply-chain recourse under §§ 445a, 478 BGB remains unaffected where mandatory.
10. Liability
10.1 ASD is liable without limitation for intent and gross negligence, for injury to life, body or health, and under the German Product Liability Act.
10.2 In the case of simple negligence ASD is only liable for breach of a material contractual obligation (“cardinal obligation”); liability is then limited to damages typically foreseeable at the time of contract, and by amount to the net order value per case of damage, and per contract year to twice that amount.
10.3 Contributory negligence, the duty to mitigate damage and statutory limitations of liability remain unaffected.
11. Reservation of title (extended)
11.1 The delivered goods remain the property of ASD until all current and future receivables from the ongoing business relationship have been paid in full.
11.2 Processing, combining or mixing of goods subject to reservation of title is deemed carried out on behalf of ASD; ASD acquires co-ownership of the new item in the ratio of the invoice value of the reserved goods to the new item.
11.3 The customer assigns to ASD, by way of security, all receivables from onward sale or processing in the amount of the invoice value; ASD accepts the assignment. The customer remains authorised to collect, revocably.
11.4 If the realisable security value exceeds the receivables by more than 10 %, ASD releases security at its option upon request.
12. Payment terms, default, set-off
12.1 Invoices are due for payment net within 7 calendar days of the invoice date. Discounts require express agreement.
12.2 In case of default, default interest of 9 percentage points above the base rate plus the € 40 flat fee applies (§ 288 (2), (5) BGB).
12.3 Rights of set-off or retention are only available to the customer for counterclaims that are undisputed or established by final court decision.
13. Export & sanctions compliance
13.1 The customer complies with all export, sanctions and foreign trade regulations of the EU and the country of destination, in particular the Dual-Use Regulation (EU) 2021/821.
13.2 ASD may withdraw from the contract or suspend deliveries if export or sanctions regulations preclude them.
14. Data protection
ASD processes the customer’s personal data (contacts etc.) for contract performance and legitimate interests (Art. 6 (1) (b), (f) GDPR). See the privacy policy on the ASD website for further details.
15. Product and quality instructions
15.1 The customer observes storage, transport and temperature requirements (GDP/GMP-compliant) and product instructions; warranty and liability claims are excluded to the extent the defect results from any deviation.
15.2 Advice, application or dosage guidance by ASD is given to the best of its knowledge, without guarantee of completeness or fitness for individual use; it does not release the customer from its own examination.
16. Jurisdiction, governing law, place of performance
16.1 The exclusive place of jurisdiction, as far as legally permissible, is Straubing (§ 38 ZPO).
16.2 German law applies, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
16.3 The place of performance for all obligations arising from the contractual relationship is the registered seat of ASD.
17. Severability
If individual provisions of these terms are invalid or unenforceable, the effectiveness of the remaining provisions is unaffected. In place of any invalid provision, the arrangement that comes closest to the economic intent in a legally permissible manner is deemed agreed.