Terms
General Conditions of Sale
1. Preamble
1.1. Seller is Curtis Systems GmbH, a corporation organized and existing under German laws with its principle place of business in Hochheim, Germany.
1.2. Our sales shall be exclusively governed by these General Conditions of Sale, hereinafter called Conditions. Conditions and any conditional or different terms proposed by the buyer will be not be binding upon the seller unless assented to in writing by the seller. Understandings and agreements ( e.g. offers, order acknowledgement, order acceptance) shall be in writing until the contract is concluded.
These Conditions shall also govern any future Contract of Sale between the parties to the exclusion of any other conditions.
They are used in a contract with a merchant in the course of business only.
2. Offer and Acceptance
2.1. Any offer to conclude a contract shall be binding and irrevocable for 14 days. This time begins run from the date shown on the offer.
No offer submitted by the buyer shall be deemed to be accepted by the seller unless and until confirmed in writing by the seller or the seller´s representatives within the time he has determined.
2.2. The acceptance of an offer shall reach the offeror within the time he has fixed. Otherwise it is not valid.
3. Delivery, Transfer of Title and Risk
3.1. The seller is not obliged to deliver accessories not specified explicitly or to advise the buyer.
3.2. Except as provided in a contract the seller undertakes to handle the Contract Products over to the first carrier for transmission to the buyer. If the buyer does not give the seller sufficient notice of the carrier in due time, the seller may contract for carriage on usual terms at the buyer´s risk and expense. Notification to the buyer of the Contract Products being delivered is not required.
3.3. Risk as to price and performance passes to the buyer as soon as the Contract Products have been delivered in accordance with 3.2. or the title in the Contract Products has passed to the buyer.
3.4. The seller retains the title to the Contract Products until settlement of all accounts receivable and other claims by the seller against the buyer which have accrued under this Contract of Sale including those which only fall due in the future.
4. Delivery Date
Except as provided in a contract, delivery shall be carried out 3 to 4 weeks after a Contract of Sale has been concluded
5. Other Obligations
5.1. The seller is only obliged to inform the buyer of delay or non-performance when these become certain.
5.2. The seller undertakes to procure licences, permits, approvals or consents required for the export of the Contract Products. The seller is entitled to avoid a Contract of Sale in whole or in part without compensation, if’ the required export licences, permits, approvals or consents are not granted by the German authorities.
5.3. The seller is not obliged to perform any additional obligations not mentioned in the Contract of Sale. In particular the seller is not obliged to insure the Contract Products, to procure certificates or documents not expressly agreed upon, except as provided in 5.2. to obtain required licences, permits, approvals, consents or other formalities or to procure customs clearance, to bear levies, dues, taxes, duties and other charges accruing outside the Federal Republic of Germany or to comply with weight and measuring systems, packaging, labelling or marking requirements applicable outside Germany.
6. Price and Payment
6.1. The Purchase Price does not include the cost of shipment and insurance,
packing and freight. At the buyer´s request, the seller shall insure the Contract Products at the buyer´s expense.
6.2. Except as provided in a Contract of Sale, all levies, dues, taxes, duties and other charges shall be borne by the buyer.
6.3. The seller retains the right to increase the price of the Contract Products according to increases in the seller`s costs due to any consequence beyond his control or any change in delivery dates. The seller must give notice to the buyer prior to delivery.
6.4. The buyer shall pay the net-price of the Contract Products within 30 days of the date of the seller´s invoice. Payment shall be effected by interbank payment transaction only; no cheque or bill of exchange will be considered as fulfilment of the payment obligation.
Payment is made when the contract sum is paid into the seller´s bank account at his full disposal.
6.5. The buyer`s payment obligation is to be transferred in German currency (DEM or EUR) to banking account Number 203 029 993 at the Nassauische Sparkasse Wiesbaden, Code-Number 510 500 15, without deductions and free of expenses and costs to the seller.
6.6. In the event of delay in payment the seller will be entitled to charge the buyer - without prejudice to compensation for further losses -the costs of judicial and extra-judicial means and proceedings as well as interest on the amount unpaid at the rate of 4 per cent per annum above Discount Rate of the German central bank (Deutsche Bundesbank) or 4 per cent above the prime rate of the European Central Bank.
The buyer shall have the right to prove that the delay of payment caused little or no damage.
7. Set off, Suspending Performance
7.1. Legal rights of the buyer to set-off against claims of the seller for payment are excluded, except where the corresponding claim of the buyer has either been finally judicially determined or recognised by the seller in writing.
7.2. Legal rights of the buyer to suspend payment and to raise defences are excluded except where, despite written warning, the seller has committed a fundamental breach of his obligations to deliver or transfer the title to the Contract Products arising out of a Contract of Sale, and has not offered any adequate guarantee.
8. Conformity of Contract Products
8.1. The seller is in particular not liable for the Contract Products being fit for a particular purpose to which the buyer intends to put them or for their compliance with the legal requirements existing outside Germany.
8.2. The seller does not guarantee the compliance of the Contract Products with pictures, photos and written specifications in the seller´s sales literature and information material unless agreed upon in writing by the seller.
Technical information and information on application of the Contract Products are given without obligation and exclusive of any liability.
8.3. The seller is not liable for any damage in transit of the Contract Products which could be covered by the insurance provided for in 6.1.
9. Examination and Notice of Lack of Conformity
9.1. The buyer must examine the Contract Products as required by law and in so doing check each delivery in every respect for any discoverable lack of conformity with the contract.
9.2. The buyer shall give notice of any lack of conformity with a Contract of Sale to the seller as required by law, and in any event directly and in writing and by the quickest possible means by which delivery is guaranteed (e.g. by telefax).
10. Consequences of Delivering non-conforming Contract Products
10.1. Following due notice of lack of conformity with the contract, the buyer can rely on the remedies provided for by the UN- Sales Convention regarding the terms laid down in these Conditions. In the event of notice not having been properly given, the buyer may only rely on the remedies if the seller has fraudulently concealed the lack of conformity with the contract.
10.2. The buyer is entitled to demand delivery of substitute Contract Products or repair or reduction of the purchase price as set forth in and in accordance with the terms of the UN-Sales Convention.
10.3. Irrespective of the buyer`s remedies, the seller is entitled, in accordance with the applicable law, to repair non-conforming Contract Products or to supply substitute goods.
11. Third Party Claims
11.1. Without prejudice to further legal requirements, third partie`s rights or claims based on industrial or other intellectual property are unfounded except in case of a defect in title to the extent that the industrial or intellectual property is registered and made public in Germany.
11.2. The buyer’s claims for defects in title including those founded on industrial or intellectual property will be time-barred according to the same rules as the claims for delivery of non-conforming Contract Products.
11.3. Third parties not involved in the conclusion of a Contract of Sale, in particular those purchasing from the buyer, are not entitled to demand delivery to themselves, to rely on any remedy provided for in these Conditions or to raise claims against the seller, based on delivery of non-conforming Contract Products or defect in title.
12. Product Liability
Without prejudice to the seller’s continuing legal rights and waiving any defence of limitation, the buyer will indemnify the seller without limit against any and all claims of third parties which are brought against the seller on the grounds of product liability or similar provisions, to the extent that the claim is based on circumstances which were caused after risk passed, by the buyer.
13. Avoidance by the buyer
Without prejudice to comply with the respective applicable legal requirements, the buyer is only entitled to declare a Contract of Sale avoided after he has notified the seller in writing of his intention to do so and an additional period of time of reasonable length for performance has expired to no avail.
14. Avoidance by the seller
14.1. Without prejudice to its continuing legal rights, the seller is entitled to avoid a Contract of Sale in whole or in part without compensation
a) if insolvency proceedings relating to the assets of the buyer are applied for or commenced;
b) if the seller does not receive the price properly or in time;
c) if required export licences, permits, approvals or consents are not granted by the German authorities;
d) if for other reasons the seller cannot be expected to fulfil his obligations by means which are unreasonable in particular in relation to the agreed counterperformance.
14.2. The seller is entitled either to avoid or delay the delivery
a) in the cases mentioned in 15.3. for the duration of the particular impediment.
b) if the seller fails to make delivery in time due to a failure by a third person supplying the seller.
15. Damages
15.1. The seller is only obliged to pay damages pursuant to a Contract of Sale and these Conditions or extra contractually if he deliberately or in circumstances amounting to gross negligence breaches obligations owed to the buyer. This limitation of liability does not apply if the seller commits fundamental breach of contract. The seller is also liable for non-conformity of Contract Products with specific guaranteed qualities made in writing by the seller prior to the conclusion of contract.
15.2. The seller is not liable to the buyer for any loss of profit or any loss or consequential damage suffered by the buyer.
15.3. Without prejudice to its continuing legal rights, the seller is not liable for a failure to perform any of its obligations if the failure is due to impediments which occur, e. g. as a consequence of natural or political events, acts of state, industrial disputes, sabotage, accidents or similar circumstances and which can not be controlled by the seller with reasonable means.
15.4. The buyer is required in the first instance to rely on other remedies and can only claim damages in the event of a continuing deficiency.
16. Amount of Damages
16.1. In the event of contractual or extra contractual liability the seller will compensate the loss of the buyer to the extent that was foreseeable to the seller at the time of the conclusion of a contract.
16.2. The amount of damages for late delivery is limited to 1 per cent of the respective delivery value for each full week, up to a maximum of 10 per cent of the respective delivery value. For other breaches of contract the amount is limited to the delivery value.
17. Limitation
17.1. Contractual liability shall be terminated six months from the date of delivery.
17.2. In relation to the limitation of extra contractual claims of the buyer against the seller, which are concurrent with contractual claims for delivery of non-conforming Contract Products or for defects in title including those founded on industrial or intellectual property, the provisions of §§ 477 -479 BGB (German civil code) apply.
17.3. To the extent that the seller`s liability is excluded or limited, this also applies to the personal liability of the employees, servants, members of staff, representatives of the seller and those employed by the seller in the performance of its obligations.
18. Place of performance
Without prejudice to 3.2. of these Conditions the place of performance and payment for all obligations arising from the legal relationship between the seller and the buyer is the seller´s principle place of business (Hochheim). In particular, this provision also applies in the case of restitution of performances already rendered.
19. Applicable law
19.1. The legal relationship with the buyer is governed by the United Nations Convention of 11 April 1980 on Contracts for the international Sale of Goods (UN Sales Convention) in the English version. Where standard terms of business are used, the INCOTERMS 1990 of the lnternational Chamber of Commerce apply.
19.2. Outside the application of the UN-Sales Convention, the contractual and non-contractual legal relationship between the parties is governed by the non-uniform German law, namely by the BGB/HGB (German civil and commercial code).
20. Jurisdiction
20.1. Without prejudice to 20.2. of these Conditions the parties submit for all contractual and extra contractual disputes arising from a Contract of Sale to the local and international exclusive jurisdiction of the court of Frankfurt am Main.
20.2. The seller shall have the right to bring a claim at the principle place of business of the buyer as well or before other courts competent according to any national or foreign laws.
21. Miscellaneous
21.1. All communications, declarations, notices etc. are to be drawn up exclusively in the German or English language. Communications by means of telex, fax or telemessage fulfil the requirement of being in writing.
21.2. If provisions of a Contract of Sale should be or become partly or wholly void, the remaining conditions will continue to apply. The parties are bound to replace the void provision or the void part of the provision by a legally valid arrangement, which comes as close as possible to the commercial meaning and purpose of the void provision or the void part of provision.
