General Sales Terms and Conditions for curea medical GmbH (AVB curea)

Last updated: 13 August 2012

1 Scope, general
1.1 These General Sales Terms and Conditions (AVB curea) apply to: our sales contracts with entrepreneurs (§ 14 German Civil Code), legal entities under public law and special funds under public law. They also apply to all future deliveries, even if they are not separately agreed on one at a time.

1.2 These curea General Sales Terms and Conditions apply exclusively. Opposing or deviating customer conditions are only binding for us if we have agreed to their validity in writing. The curea General Sales Terms and Conditions also apply if we carry out the delivery to the customer without reservation while also being aware of conflicting or deviating customer conditions.

1.3 The statutory provisions also apply as long as they are not modified or excluded in AVB curea.

2 Offer and acceptance, offer documents
2.1 Our offers are subject to change and non-binding unless otherwise stated.

2.2 Once the customer has ordered goods, it is considered a binding contract offer. We are entitled to accept this contract offer within 14 days once we receive it, as long as the order does not contain any other binding period of time. The acceptance can be declared both expressly, e.g., by order confirmation and tacitly, e.g., by delivery of the goods.

3 Deliveries and delivery times
3.1 Deliveries are made ex works in DE-37339 Berlingerode.

3.2 Sorted partial deliveries are permissible as long as they are announced in advance and are reasonable to the customer. They are considered reasonable if the customer can use the partial delivery within the scope of the contractual intended purpose, the delivery of the remaining goods ordered is ensured and the customer does not incur any significant additional work or additional costs, unless we agree to assume these costs.

3.3 Delivery deadlines and dates we state are always approximate, unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, then delivery periods and delivery dates start once the goods are handed over to the forwarding agent, carrier or other third party commissioned with transporting the goods.

3.4 If we are in default of a delivery or if a delivery becomes impossible for us, for whatever reason, our liability is limited to compensation in accordance with Section 9 of these Curea General Sales Terms and Conditions.

4 Place of performance, shipping, packaging
4.1 Unless otherwise specified, the place of performance for all obligations arising from the contractual relationship is DE-37339 Berlingerode.

4.2 The customer is responsible for paying all packaging and shipping costs. The dispatch route and dispatch type is up to us. All shipments travel at the risk of the customer, even in the case of carriage-paid delivery.

5 Price and payment
5.1 Our prices are stated in EUROs ex warehouse plus statutory value added tax, customs, fees and other public charges.

5.2 Invoices must be paid within thirty days without any deduction, unless otherwise agreed in writing. The date of receipt by us is decisive for determining the date of payment. Checks are only valid as payment after they have been cashed. Interest accrues at 5% per annum on outstanding payments that the customer has not paid on time asserting higher interest rates and further damage in the event of default remain unaffected.

5.3 Offsetting against counter-claims by the customer or withholding payments due to such claims is only permitted if the counter-claims are undisputed or have been legally established.

5.4 We are entitled to only carry out outstanding deliveries or services against advance payment or security if, after the contract has been concluded, we become aware of circumstances that are likely to significantly reduce the customer’s creditworthiness and which could put our payment receivables at risk in terms of getting payments from this customer based on the current contractual relationship.

5.5 In the case of a discount agreement, only the pure value of the goods without freight costs can be discounted. We are only entitled to a discount if the customer account does not have any other invoice amounts due.

6 Retention of title
6.1 We reserve title to the delivered goods until all claims from the current business relationship have been settled in full.

6.2 The customer is entitled to process and sell the goods in the ordinary course of business until the realization event occurs (6.5 below). Pledges and transfers by way of security are not permitted.

6.3 If the customer resells the goods, then he now assumes the resulting claim against the purchaser as a precaution—in the case of co-ownership of the seller in the goods subject to retention of title proportionally according to the co-ownership share—in the amount of the final invoice amount (including VAT) of our demand from us. The same applies to other claims that occur at the place where the goods were delivered or otherwise arise with regard to other claims such as insurance claims or claims from tortious acts in the event of loss or destruction. We revocably authorize the customer to assign to us to collect claims in your own name for our account. We may only revoke this direct debit authorization in the event of realization.

6.4 If third parties access the delivered goods, in particular through seizure, the customer will immediately point out our ownership and inform us of this. The customer shall be liable to us if the third party is unable to reimburse us for the judicial or extrajudicial costs incurred in this connection.

6.5 We are entitled to reclaim the goods subject to retention of title if we withdraw from the contract if the customer acts contrary to the contract—in particular if he defaults on payment (liquidation event).

6.6 We undertake to release the securities to which we are entitled at the customer’s request insofar as the realizable value of our securities exceeds the claims to be secured by more than 10%; selecting the securities to be released is incumbent on us.

7 Liability for defects
7.1 The limitation period for claims for defects is one year from delivery of the defective item(s).

7.2 Claims for defects on the part of the customer presuppose that the customer has met his inspection and complaint obligations that he owes according to §377 German Commercial Code (HGB).

7.3 In the event that the delivered items contain material defects, we are initially obligated and entitled to repair or replace the goods at our option, and this must be carried out within a reasonable period.

7.4 If the supplementary performance fails, the customer is entitled, at his discretion, to withdraw from the contract or to demand a price reduction.

7.5 If a defect is our fault, then the customer can, in certain circumstances, demand compensation as defined in Section 9.

8 Returns
We will not accept returns of any kind without our prior consent. Custom-made products opened packages and goods that can no longer be sold are excluded from being returned. The customer is responsible for paying for all transport costs, unless we have confirmed otherwise. This does not apply in the case of justified complaints.

9 Liability for damages due to negligence
9.1 Our liability for damages, regardless of legal grounds, in particular for impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations in contract negotiations and tort, is limited in accordance with the following provisions, if there is a fault in each case.

9.2 We are not liable:a) in the case of simple negligence on the part of our organs, legal representatives, employees or other vicarious agents,b) in the case of gross negligence on the part of our non-managerial employees or other vicarious agents,as long as it is not a violation of essential contractual obligations. Essential to the contract are the obligation to carry out timely, faultless delivery as well as advisory, protection and custody obligations, which are intended to enable the customer to use the delivery item in accordance with the contract or to protect the life and limb of the customer’s staff or third parties or the customer’s property from significant damage.

9.3 If the above exclusion of liability does not apply and we are fundamentally liable for damages, then this liability is limited to damage that we foresaw as a possible consequence of a breach of contract when we concluded the contract or by taking into account the circumstances that were known to us or that we should have known or should have foreseen if we had exercised due care. Indirect damage and consequential damage resulting from defects in the delivery item are also only eligible for compensation if such damage is typically to be expected when the delivery item is used as intended.

9.4 In the case of liability for simple negligence, our liability to pay compensation for personal injury, property damage and product property damage is limited to an amount of EUR 10,000,000 per claim (in accordance with the current coverage of our liability insurance), even if it is a breach of essential contractual obligations.

9.5 The above exclusions and limitations of liability apply to the same extent in favour of our organs, legal representatives, employees and other vicarious agents.

9.6 The above restrictions do not apply to our liability for willful behaviour, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.

10 Final provisions
10.1 If the customer is a merchant, DE-48565 Steinfurt is the place of jurisdiction for all disputes arising from the business relationship; however, we are entitled to sue the customer where his company is located. Mandatory statutory provisions regarding exclusive places of jurisdiction remain unaffected by this regulation.

10.2 The law of the Federal Republic of Germany applies; the validity of the UN sales law is excluded.