General terms and conditions of business
of curasan AG, Lindigstrasse 4, 63801 Kleinostheim
1. In general
(1) We deliver exclusively on the basis of our terms and conditions of business, which therefore apply equally to all our services and offers as well as to future business relations, without the need for a separate agreement to this effect. Our terms and conditions of business are deemed to have been accepted with the acceptance of our services at the very latest.
(2) Any of our customers’ terms and conditions of business, which deviate from our own, are only binding upon us if we have declared this expressly in writing. Equally, deviations from our terms and conditions of business are only effective if this has been confirmed in writing by us.
2. Conclusion of the contract
(1) Our offers are subject to change and are non-binding, unless we give express written assurances to the contrary. Samples, images and performance data are only binding if this is expressly noted.
(2) Contracts are binding for us if we have confirmed their acceptance in writing.
3. Prices; price changes
(1) Our prices are quoted net of value added tax. The value added tax due is to be paid separately at the current applicable rate.
(2) Inside Germany for a contract value above 150.00 Euro, our prices ex factory or delivery warehouse are understood to include packaging, freight, postage and insurance.
For a contract value below 150.00 Euro, we must invoice the aforementioned additional costs separately in the amount of 5.00 Euro inside Germany.
In the case of contracts with an agreed delivery period of greater than 4 months, we retain the right to increase prices in respect of increasing costs sustained due to increased wage settlements or material costs.
(1) In the absence of a further express written agreement, indicated delivery dates are not binding, nevertheless we make every effort to adhere to them.
(2) If the non-fulfilment of an agreed delivery date is due to force majeure, industrial disputes or other events that are beyond our control, we are entitled either to postpone delivery for the duration of the delay pending 14 days (including a reasonable start-up period) or to withdraw entirely or partially from the contract due to the part not yet fulfilled.
(3) If the obstruction lasts for 3 months beyond the agreed delivery date, then following an appropriate period of grace with respect to the part of the contract not yet fulfilled, the client is entitled to withdraw from the agreement.
(4) If the delay in delivery is attributable to us and if we have defaulted, then the customer can, after a prior reasonable period of grace, withdraw from the contract or demand damages for non-fulfilment. The period of grace to be set in the event of our defaulting is at least 3 weeks and does not start until we have received written notification of the setting of the period of grace.
(5) Further claims due to delay in delivery are governed exclusively according to number 6, para. (7) (8) of these conditions.
(6) Extended liability according to § 287 BGB (German Civil Code) is excluded.
5. Transfer of risk
(1) The risk passes to the client when the delivery item is handed over to the person carrying out the transport or at despatch when leaving our plant or warehouse. If despatch is delayed, or remains unperformed, as a consequence of circumstances that are not attributable to us, then the risk passes to the customer upon notification of the readiness to despatch.
6. Acceptance; notice of defects; warranty
(1) The customer must inspect the goods immediately after receipt and immediately inform us in writing, within one week following delivery at the latest, of any defects together with production of the delivery note and, if at all possible, a sample. Otherwise, the delivery will be deemed to have been carried out according to contract. Defects which cannot be detected, even after careful inspection, within the aforementioned period, must be brought to our attention in writing immediately after their discovery.
(2) If the delivery item exhibits a material defect, then we are entitled to redeliver or to remedy the defect by rectification; in the latter case, we are entitled to at least two rectification attempts. Expenses arising out of supplementary performance, specifically transport, travel, labour and material costs, will be borne by us.
(3) If the supplementary performance fails, then the customer is entitled, according to his preference, to reduce the purchase price or withdraw from the contract.
(4) In the event of supplementary performance the same guarantee is offered as for the original delivery item.
(5) There is no obligation to accept returns and redeliveries in the event of further development of our products, in respect of goods delivered prior to this point.
(6) So far as we issue information or suggestions about the use of our products, we do so to the best of our knowledge and only accept liability if additional consideration has been agreed for this.
(7) For damages that do not occur to the delivery item itself, we are liable for whatever legal reasons:
– for negligent injury to life, body and health;
– for injury to other legally protected or rights interests only in the event of intent and gross negligence;
– for defects that were fraudulently concealed or for which absence was guaranteed;
– for defects to the delivery item to the extent of liability under the Produkthaftungsgesetz (Product Liability Act) for personal injuries or material damages resulting from privately used objects;
– for culpable breach of important contractual obligations we are also liable in the event of slight negligence, however, in this case our liability is restricted to reasonable foreseeable damages typical of this kind of contract.
(8) Additional claims are excluded.
7. Retention of property
(1) Until all debts outstanding to us, to which we are or will be entitled to on all legal grounds from the customer and his legal representatives have been settled, as well as until the complete release from all contingent liabilities that we have entered into on the client’s behalf, the following securities will be accorded to us, which are only to be relinquished on request once their value clearly exceeds the claims by more than 20%.
(2) The goods remain our property. Processing and redesigning are always done by us as manufacturers, however without obligation on our part. Should our ownership or joint ownership expire due to combining, it is hereby already agreed that the customer’s ownership or joint ownership of the unified object will pass to us in proportion to the value. Safe-keeping of the goods occurs free-of-charge.
(3) The customer is fundamentally entitled to process such retained goods and may sell them on, for his part, under retention of title, provided he is not in default. Transfers, pledges and transfer of ownership as security for a debt to third parties are prohibited. Any claims relating to the retained goods, resulting from the selling-on or for other legal reasons (insurance, tort), are to be assigned to us now, by the customer, as security. Subject to revocation, he is entitled to collect the assigned debt owed on our invoice in his own name. At our request, the assignment is to be disclosed, the required information is to be gathered and the necessary documents submitted.
(4) If third parties gain access to the retained goods the customer will advise of our ownership or joint ownership and inform us immediately. Resulting costs or damages are to be borne by the customer.
(5) If the customer behaves contrary to contract, particularly if he defaults on payment, we are entitled to recover the retained goods at the customer’s expense. Such a recovery or seizure of the retained goods by us does not represent a withdrawal from the contract.
(1) Our invoices are payable strictly net within 14 days of the invoice date. The day payment is received by us is decisive.
(2) We are not obliged to accept cheques or bills of exchange. We will also only accept these on account of payment. Resulting discount or bill charges are to be borne by the client and are payable immediately.
(3) As soon as our client has defaulted on settlement of our invoice, we are entitled to charge interest at a rate of at least 9 percentage points above the European Central Bank’s base lending rate.
(4) If the purchaser defaults on his payment obligations, if he does not honour cheques or bills of exchange, if he discontinues his payments, if there is an insolvency application or application to provide a statutory declaration, then we are entitled to require immediate payment of the full amount, even if we have accepted cheques and bills of exchange. In such an eventuality, we are further entitled to require payments in advance or good-faith deposits and, following a reasonable period of grace, withdraw from the contract or claim damages for non-fulfilment.
(5) The client is only entitled to offsetting or retention rights with our express written agreement or if the alleged counterclaims are undisputed, or have been established as legally binding.
(6) Fees for money transfer shall be paid by the customer.
9. Jurisdiction; applicable law; voidness in part
(1) Aschaffenburg is agreed as the place of jurisdiction with respect to registered traders, legal entities under public law or customers that are special funds under public law, even if, at the time of commencing legal action, the purchaser’s whereabouts are unknown.
(2) The law of the Federal Republic of Germany is exclusively applicable, excluding the individual law on the conclusion of international sales contracts pertaining to movable property and the individual law on the international purchase of movables.
(3) Should a term in our terms and conditions either be or become unworkable, the effectiveness of the remaining conditions remains unaffected. Ineffective terms are to be replaced jointly by us and the customer by an effective one that fulfils the desired commercial purpose insofar as this is legally permissible.
This is a translation from the original business terms and conditions in German. In the event of any dispute, the original German business terms and conditions shall prevail.