General Terms and Conditions
General Terms and Conditions Celsion Brandschutzsysteme GmbH
§ 1 General Provisions
(1) Following general terms and conditions shall apply for all sales, deliveries or other services of Celsion Brandschutzsysteme GmbH (hereinafter referred to as Celsion) together with deliveries and services to Celsion, even if Celsion does not make specific reference. Their validity only can be excluded by explicit written agreement in whole or in part.
(2) These general terms and conditions shall only apply vis a vis entrepreneurs, governmental entities, or special governmental estates within the meaning of sec 310 para. 1 BGB (German Civil Code).
(3) These terms and conditions apply exclusively; contrary or differing terms, especially terms and conditions of purchase, oral agreements or agreements by phone and additional agreements are legally binding only after our explicit written confirmation. They will also not be recognized if we do not expressly contradict after receiving.
(4) A deviation from the written form requirement cannot be made orally. The written form is also fulfilled by remote data transmission or facsimile.
(5) We are entitled at any time to amend or complete these terms and conditions including any annexes within a reasonable time. Orders received before are processed according to the still valid old terms and conditions.
§ 2 Conclusion of contract
(1) Verbal agreements before or at the conclusion of the contract need our written confirmation. The written form is fulfilled by long-distance data transmission or facsimile.
(2) All offers made by us are subject to change. Orders and forecast delivery schedules as well as changes and additions must be in written form.
(3) Contracts are regarded as come into existence when our written confirmation of order and the necessary approvals from customers / suppliers are available. A confirmation of order which is created with the aid of automatic devices and which has neither a signature nor a specification of a name is regarded as written.
(4) If the customer does not contradict our confirmation of order within three business days after receipt, then our general terms and conditions apply fully and without restriction.
(5) The supplier is obliged to accept our orders and delivery schedules within a reasonable time, at the longest within a period of two working days after receipt. The acceptance must be in writing. A late acceptance is regarded as a rejection of the order or the delivery request.
(6) The obligation of Celsion to deliver only occurs after proper confirmation of the order. The principal is bound by the order for 30 days.
§ 3 Passing of Risk, Shipment
(1) For deliveries by Celsion connected with installation or assembly, the risk of loss or damage to the goods passes to the customer with completion of the installation/assembly. For deliveries without installation/assembly the risk of loss or damage to the goods passes to the customer upon dispatch, at the latest when the goods exit the plant/warehouse.
(2) If there is a delayed shipment for reasons on customer site, the risk of loss or damage to the goods passes to the customer with the notice of readiness for shipment.
(3) For deliveries to Celsion the risk of loss or damage to the goods passes to Celsion with proper and complete delivery to Celsion or representatives of Celsion and with delivery to the named place of destination.
(4) To each shipment packing slips or delivery notes with details of the contents and the complete order number shall be attached. If necessary, proofs of usability shall be enclosed.
(5) Packaging, insurances and shipping method will be determined by us in compliance with the technical requirements.
§ 4 Prices and delivery charges
(1) The prices of our price list currently in force shall apply. For a period of three months from the time the contract was concluded the contract prices shall apply. Unless a fixed price agreement has been made, reasonable price changes are reserved due to changes in labor, material and distribution costs for deliveries made three months or later after the conclusion of contract.
(2) Unless there is no converse written agreement, the prices apply from plant or warehouse plus the statutory value added tax and the packaging and shipping costs, which are calculated separately. For deliveries to the point of use a separate calculation of costs apply in compliance with the technical requirements (e.g. static, elevators, doorways, floor height, etc.).
(3) A fee-based express shipping is possible upon request.
(4) For deliveries to EU Member States we will invoice according to the VAT Single Market Act (UStBMG), in the presence of VAT-ID. without VAT (sales tax), otherwise by value added tax (VAT) at the statutory rate. All prices are exclusive of VAT.
(5) The amount of packing according to our current price list applies as minimum purchase. In case of falling below we are entitled to charge a reasonable extra charge for small quantities.
§ 5 Payment terms
(1) Unless otherwise agreed upon, invoices for the supply of trade goods are payable against payment in advance. For existing customers (proof of solvency is required) invoices for the delivery of trade goods are payable without deduction within 30 calendar days after the invoice date or within 10 calendar days after the invoice date less 2% discount.
(2) Other invoices, especially for services (such as seminars and lectures), assembly, etc. are to be made either by lump sum settlement or settlement measured on the effort. These invoices are payable within 10 calendar days after the invoice date without deduction or discount on advance payment (by arrangement).
(3) Invoices against Celsion may also be issued as electronic invoices in compliance with statutory requirements. Electronic invoices shall be submitted to the following e-mail address: email@example.com.
(4) Payments have taken place when we can dispose of the amount.
(5) If the customer is in default with a demand for payment, he shall be obliged to pay default interest up to the statutory amount. The right to assert further claims for damages remains unaffected.
(6) The right of retention from earlier or other transactions of the ongoing business relationship is not permitted. The customer shall be entitled to offset only insofar as the customer's counterclaim is acknowledged, undisputed or assessed in a legally binding judgement.
(7) We are in possession of an exemption certificate for tax deduction for construction services.
§ 6 Duty of disclosure
Suppliers of Celsion have to fulfill the obligations of the "Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) ...." (hereinafter REACH Regulation). These include in particular the production and distribution of safety data sheets in accordance with Article 31 paragraph 1 of the REACH Regulation in case that the delivered substance or the mixture fulfills certain hazard criteria. Any supplier of a substance or a mixture who has no safety data sheet in accordance with Article 31 of the REACH Regulation, must provide all necessary information under Article 32 or Article 33 of the REACH Regulation. The supplier must provide this information free of charge and in writing by no later than the first delivery of the product.
§ 7 Delivery
(1) In the case of pick up by the customer the goods must be collected from our premises within three working days after the notification.
(2) The customer has to ensure that a possibility for delivery and the required free access is guaranteed at the intended place of use.
(3) Delivery is conditioned upon timely and proper performance of all duties of the customer, in particular the timely receipt of all documents, permits, inspections, approvals to be provided by the customer and the receipt of any agreed deposit or payment in advance. Unless these conditions are not performed properly in time, the delivery time shall be reasonably extended.
(4) The time of delivery is complied if the products have left our factory prior to its expiry. Compliance with the delivery time is subject to proper, in particular timely supply of Celsion, unless Celsion is responsible for the reason of improper supply.
(5) The time for delivery shall be reasonably extended - also within a delay - in cases of force majeure (especially natural disasters of any kind, such as floods, storms, etc.) and all unpredictable events occurring after signing the contract and for which we are not responsible. This also applies if these circumstances occur to our suppliers and their subcontractors. We will inform the contracting party of the beginning and end of such circumstances immediately. Equal to force majeure are disruptions, strikes, labor disputes and any other unpredictable, extraordinary circumstances.
(6) Deliveries are basically curbside deliveries, otherwise agreed upon in writing. Deliveries within the Federal Republic of Germany take place without islands.
(7) Order changes are possible after receipt of the confirmation of the order. Order changes for products which are already in production are possible against payment of a fee. Cancellation costs: 30% with standard systems according to the current price list, for special systems up to 100%.
(8) If a customer is in default of acceptance or if a customer culpably violates its collaboration duties, we have the right to demand compensation for the damage including additional expenses. The right to raise further claims shall remain unaffected hereby. In this case the risk of risk or loss to the goods passes to the customer.
(9) In case of delivery to us all in the order / forecast delivery schedule specified or otherwise agreed upon delivery dates are binding. The receipt of the goods at the place mentioned in the order / forecast delivery schedule is decisive for the observance of the delivery date or delivery period. In case of delayed delivery, the supplier is obliged to inform us immediately of any imminent or actual non-compliance with the delivery date, their causes and the expected duration of the delay. The default of delivery shall remain unaffected. In case of delayed delivery we are entitled to all statutory claims.
(10) The unconditional acceptance of a delayed delivery or service does not constitute a waiver of claims for compensation; this applies until the full payment of the delivery or performance by us.
(11) Partial deliveries are permitted upon written request.
(12) The values for weights, measurements, quantities determined at the goods receipt inspection are decisive subject to any other evidence.
(13) If the agreed contract terms are not complied for reasons for which the supplier is responsible or if the supplier is in default, we have the right to demand compensation for the delay amounting to 5% of the contract sum. Any further claims for damages remain unaffected.
§ 8 Retention of Title
(1) We retain title to the products delivered until all claims arising from the ongoing business relationship with the customer are fulfilled. The customer is obliged to treat the products subject to retention for the duration of the retention of title with care. If maintenance and inspection works are carried out, the customer has to carry them out at his own expense on time.
(2) The customer may resell products subject to the retention of title only in the course of his regular business. Moreover the customer is not entitled to pawn the products subject to the retention of title, to assign the products for security or to take dispositions, which may jeopardize our property. The customer already now assigns all claims to us, including all security interests and ancillary rights arising from the resale. He is entitled until recalled, to enforce the claims assigned to us. Our authorization to enforce the claims ourselves remains unaffected. However, we will not
enforce the claim as long and as far as the customer meets his payment obligations. The same applies if the customer is not in default of payment and he did not make a request to open insolvency proceedings or similar proceedings and if there is no suspension of payment.
(3) The processing or transformation of the products subject to retention of title by the customer always takes place in the name of and on behalf of us. If the contract products are processed or transformed with other objects not belonging to us, we shall acquire co-ownership of the new item in proportion to the objective value of our products to the other objects at the time of processing or transformation. The same applies if the products are combined or mixed with other products not belonging to us so that we lose our full ownership. To secure our claims against the customer, the customer shall also assign such claims to us, which he obtains by the combination of the goods subject to retention of title with premises.
(4) If the value of the existing securities exceeds the secured claims by more than 15%, we are committed for release or return of the securities on request of the customer according to their choice.
§ 9 Warranty
(1) The responsibility for defects depends on the statutory requirements, unless otherwise agreed upon is specified below.
(2) Precondition for any warranty claim of the customer is the customer's full compliance with all requirements regarding inspection and objection established by sec. 377 HGB (German Commercial Code).
(3) Warranty claims of the customer assume that the customer reviews the product in the presence of the forwarder or our employee upon receipt, as far as reasonable by sample processing or sample use. Furthermore, the customer has to inform us in writing about obvious defects not later than two weeks after receipt of the products. Transport loss must be noted in writing on the carriage note of the shipping company. Hidden defects must be reported to us immediately after their discovery. In addition, the warranty claims assume that during the assembly, completion, installation, commissioning, operation and maintenance of the products, the specifications, instructions, guidelines and conditions in the technical notes, assembly, operation and operating instructions and other documents of the individual products are complied with. Particularly maintenance shall be carried out properly in accordance with the proof of usability and only recommended components shall be used.
(4) We do not provide warranties, in particular no guarantees of quality or durability, as far as there was nothing else agreed in writing. Product informations and specifications (including quotations and confirmations of the order) only act as description of the goods and do not include guarantees of quality within the meaning of sec. 443 BGB (German Civil Code).
(5) If, despite all due care, the delivered product has a defect which already exists at the time of passing of risk, we will repair the product or deliver a new product for replacement, subject to timely notice. We must always have the opportunity of supplementary performance within a reasonable time. Rights of recourse shall remain unaffected without limitation of the above regulation.
(6) Warranty claims do not exist if defects occur for which the customer is responsible, for example caused by unsuitable or improper use, especially disregard of the installation, operation, or operating instructions and the instructions in the usability evidence and other documents; caused by faulty commissioning; caused by incorrect combination of not provided parts; caused by faulty installation by the customer. If the customer or third parties perform corrective maintenance work or modifications, warranty claims are excluded.
(7) Claims of customers which are necessary for the purpose of supplementary performance, in particular transport, travel, labor and material costs are excluded to the extent that expenses are increased because the goods delivered by us are subsequently transported to another place or branch of the customer, unless the transfer is in accordance with its intended use.
(8) The customer must not return any contractual products to us, unless we have expressly agreed to the return. The foregoing provision shall not apply if the customer is entitled by act of law to withdraw or to claim supplementary performance.
(9) The statutory warranty rights apply unconditionally in case of deliveries and services. In particular we are entitled to claim remedy of defects or delivery of goods free of defects or to demand compensation to our choice.
(10) In case of legal defects our supplier shall indemnify us from any claims of third parties, unless he is not responsible for the defect.
(11) With regard to time limitation of claims for defects the statutory provisions shall apply.
§ 10 Right to withdraw and right of termination
(1) We are entitled to rescind a contract or to terminate a contract with immediate effect if
- a significant deterioration in the financial circumstances of the customer occurs or if it threatens to occur
- the customer is insolvent or overindebted
- the customer stops payment
- or if the delivery of the contractual product did not yet occur and no proper use is intended.
§ 11 Confidentiality
(1) All information originating from us (including features, which can be deduced from objects, documents or software and other knowledge or experience) which are designated as confidential or are identified as business or trade secrets, shall be treated as confidential as long as and to the extent it is not proven generally known or generally accessible and unless required for the business relationship and shall neither be recorded nor used by the customer. We reserve all rights to such information (including copyright and the right to file industrial property rights). As far as we have access to this information from third parties, this reservation also applies to these third parties. Upon our request, all information originating from us (including any copies or records) and objects left on loan have to be returned to us immediately and completely or they have to be destroyed.
(2) We reserve all rights concerning documentation such as drawings, designs, patterns, etc. which are provided to the customer in connection with the ordering / performance of the order. These documents may not be made available to third parties, unless we give the customer the express written consent.
(3) Passing on and copying of documents, especially technical drawings, and the use or communication of the contents are strictly prohibited unless expressly authorized. Offenders will be liable for damages. All rights are reserved in the event of the registration of a patent, utility patent or design patent. In addition, the change of the documents is prohibited.
§ 12 Product liability
(1) In the event that we are subject to a product liability claim, the supplier shall indemnify us and hold us harmless from and against any and all liability or claims of third parties, if and to the extent that the damage was caused by a defect of the product delivered by the supplier. In cases of strict liability, this applies only if the supplier is at fault. If the supplier is responsible for the damage, he must prove that he is not at fault. In this case he accepts all costs and expenses, including any legal action.
(2) Moreover, the statutory provisions shall apply.
§ 13 General provisions
(1) If any of the provisions of these terms and other agreements shall become or be held invalid or unenforceable completely or partially or if there is a gap, all other provisions hereof shall remain in full force and effect. The contracting parties are obliged to replace the invalid or unenforceable provision by a valid or enforceable provision which economically accomplishes as far as possible the purpose and the intent of the invalid or unenforceable provision.
(2) Contractual relationships shall only be governed by the laws of the Federal Republic of Germany excluding the Convention on Contracts for the International Sale of Goods (CISG).
(3) The place of jurisdiction for all disputes arising directly or indirectly from contractual relationships, to which these general terms and conditions apply, is Bautzen (Saxony), Germany. This also applies in the certificate and change process and if the customer has no general jurisdiction in the Federal Republic of Germany or if the domicile or habitual residence is not known at the time of action.
(4) However, we are entitled to sue the customer at our discretion at the court of his place of business or branch or at the place of performance.
(5) The above terms and conditions are valid from 01.07.2014.
Radibor, July 2014.