General Terms and Conditions of Sale

Celsius42 GmbH
Hermann-Hollerith-Str. 11
52249 Eschweiler

§ 1 General Area of Application

  1. Our conditions of sale and delivery shall apply exclusively; conflicting or deviating conditions of the customers, we do not accept unless we have expressly accepted them in writing. Our conditions of sale and delivery shall also apply in the case where we execute the delivery for the customer in the awareness of conflicting or deviating conditions of the customer without reservation.
  2. These conditions shall apply in case of permanent business connections also for future transactions in which it is not expressly referred to the conditions, provided that the conditions had been included in one of the earlier contracts.
  3. All stipulations which are made between us and the customer for the purpose of the execution of the contract are in writing subject to these conditions. Subsidiary agreements and amendments need to be in writing. This also applies for the disclaimer of the requirement for written form. Individual agreements are not affected by the aforesaid conditions.
  4. These conditions shall exclusively apply towards contractors who execute the contract in their capacity as tradesmen or as self-employed people as well as towards public legal entities and public separate estates.

§ 2 Offer–Bidding documents

  1. In case the order can be qualified as an offer according to section 145 BGB (Bürgerliches Gesetzbuch = German Civil Code), we shall have the right to accept this offer within a period of two weeks.
  2. Our offers shall not be binding with respect to price, quantity, delivery time and availability. The order shall become binding on the seller upon our written order acknowledgement. Amendments and oral agreements shall be also acknowledged in written form.
  3. In regard to illustrations, drawings, calculations, models, prototypes and all other miscellaneous documents we reserve all property -and copyrights. This also applies for all written documents which are specified as confidential. Without our prior approval these documents shall not be made accessible to third parties and shall not be used for other purposes, particularly for inhouse-production. On demand these documents shall be returned to us immediately.
  4. Details of the object of delivery or performance shall not be regarded as a guarantee of the quality of the product unless it is explicitly indicated.
  5. The customer bears the total risk any corrections to the documents, e.g. drawings, teachings, models or comparable documents which are provided/attached by the customer. Oral details in regard to measurements, tolerances or comparable aspects shall be acknowledged in written form.
  6. Models and prototypes shall only be delivered against payment.

§ 3 Terms of payment

  1. Provided there is no other agreement resulting from the order acknowledgement, our prices shall apply „ex factory“; excluding pack
    aging; these costs shall be invoiced separately.
  2. In the event that we have undertaken in writing to do the installation on site the customer shall by the agreed delivery dates create the housing, technical and other installation and connection conditions to enable us to achieve operating readiness. The customer shall be advised of the installation and connection conditions when the contract is entered into. We shall inform the customer of any changes or additions at the proper time.
  3. The statutory Value Added Tax is not included in our prices; it shall be separately disclosed in the invoice at the statutory rate which applies on the day of the invoice. Moreover all prices do not include the accruing customs duties, other taxes or charges as well as charges for transport and insurance.
  4. Cash discount shall be agreed separately in written form.
  5. Provided there is no other agreement resulting from the order acknowledgement, the net purchase price (due net) becomes due immediately from the date of invoice. In case of default of payment the statutory regulations shall apply.
  6. The customer shall have the right to set-off only if his counterclaims are legally binding, undisputed or we have recognized the claim. Moreover the customer shall have the right of retention only as far as his counterclaim is based on the same contractual relationship.
  7. We reserve the right to amend our prices when after conclusion of the contract cost reductions or cost increases, particularly resulting from alterations in prices in regard to material or tariff agreements, commence. On demand by the customer we shall provide evidence about that.

§ 4 Delivery

  1. The commencement of the delivery time we have specified requires the clarification of all technical issues. Also the delivery time we have specified, shall be no fixed period for delivery unless it is expressly agreed in written form. The delivery time refers to the completion in the factory, provided there is no other agreement resulting from the order acknowledgement. The compliance with the delivery obligations requires the due and correct performance of the customer’s obligations. The exception of non-performance shall be reserved.
  2. In case we are obliged to perform in advance and it becomes transparent that our claim is at risk because of absence of performance of the customer, e.g., by unfavorable financial situation of the customer or by default payment in regard to other claims resulting from the business relationship, we shall have the right to retain our delivery. The right to refuse performance shall not apply in case the consideration or a deposit is performed. We shall have the right to set an adequate time limit within which the customer shall by way of delivery versus payment perform his obligation or a deposit. In case of unfruitful expiration of the given time limit we shall have the right to withdraw from the contract. Section 323 BGB does apply accordingly.
  3. In case of default of acceptance of the customer or in case of other culpable infringements of his obligations to cooperate we shall have the right to claim damages including all additional expenditures as far as they result here from. Particularly, the customer has to bear
    the accruing warehousing costs. They shall be assessed higher or lower in case we substantiate a higher or the customer a lower damage. Additional claims for damages shall be reserved.
  4. Provided the conditions of paragraph 3 are fulfilled, the risk of accidental loss or accidental deterioration of the object of purchase shall be automatically transferred to the customer at the time of his default of acceptance or payment.
  5. Partial deliveries which are appropriate and reasonable shall be permissible without special agreement.
  6. Force majeure of any kind shall relieve us from our obligation to supply delivery, as long as and to the extent that the hindrance prevails as well as for an appropriate acceleration time, or to withdraw partially or completely from contract in respect of the non-performed part of the contract. Force majeure is alike strikes, lockouts or unforeseeable or unavoidable instances, e.g. production disturbances which makes the delivery impossible despite all reasonable efforts; we shall provide evidence. This shall also apply if the aforementioned hindrances occur during default or at the sub-supplier. The customer may request during a period of two weeks an assertion whether we withdraw from contract or deliver within an appropriate grace period. In case we do not assert anything, the customer may withdraw from contract in respect of the non-performed part of the contract. We shall inform the customer immediately if any case of force majeure, as it is referred here, occurs.

§ 5
Maintenance
The object of the contract is a complex system which falls under the Medical Devices Act. For this reason, during the lifetime of the warranty, maintenance is mandatory, which requires the conclusion of a maintenance agreement at the time of purchase. Within the framework of the maintenance, the customer receives support services, telephonehotline or proactive maintenance services in addition to the warranty, in accordance with the requirements of the instructions for use. The prices for the obligatory maintenance and maintenance agreement are determined by the offer and the order confirmation. The prices are valid for 12 months from the date of commissioning. The maintenance agreement begins with the date of commissioning and is extended by 12 months in each case if the contract is not terminated with a deadline of two months to the respective contract station.
§ 6 Passing of the risk – Packing charges

  1. Provided there is no other agreement resulting from the order acknowledgement, delivery shall be „ex factory“. The risk of accidental loss or accidental deterioration of the object of purchase shall be automatically transferred to the customer even in cases of carriage free delivery with delivery to the carrier.
  2. Paragraph 1 and section 4 paragraph 4 do also apply in cases of partial deliveries or in cases where we supply other services like transport. Incoterms shall only apply as expense-clause insofar.
  3. Provided it is not instructed differently by the customer, the goods shall be packaged customary in trade in our discretion.
  4. All (transport-)packaging shall not be taken back according to the requirements of the “Verpackungsverordnung“ (German Regulation on Packaging) (not included are pallets). The customer is obliged to dispose the packaging at his own expense.
  5. Provided that the customer requires it, we will cover the delivery with transportation insurance; the accruing costs shall be born by the customer insofar.
  6. Provided that there is no special agreement, the choice of the route and the mode of transport are made at our best discretion without any liability for cheaper shipment or shorter route.

§ 7 Material defects

  1. Warranty claims of the customer do require that the customer has complied with his obligations to inspect and to complain delivery accordingly to section 377 HGB (Handelsgesetzbuch = German Commercial Code).
  2. In case of a founded notice of defect we shall at our own option be obliged to remove the defect or to deliver a product which is free of defect. Provided that we do not comply with this obligation within a reasonable time or the rectification of defects fails despite a repeated attempt, the customer shall be entitled to reduce the purchase price or to withdraw from contract. Further claims, particularly claims for reimbursement for expenses or damages because of the detriment or the consequential harm caused by the defect, shall only exist according to the regulation in section 8.
  3. The period of limitation for warranty claims shall be 12 months starting from the point of passing of the risk, provided that there is no other agreement.
  4. In the event of delivery recourse in accordance with sections 478, 479 BGB, the legal period of limitation will remain unaffected. The right to recourse pursuant to sections 478, 479 BGB only applies provided the consumers demand/claim was legitimate and only in the statutory scope, but not for ex gratia payment arrangements agreed with us. We understand that the recourse beneficiary carries out his duties, in particular his obligation of reproof.
  5. The liability for guarantee for quality and durability as well as the liability for deceit, intent, gross negligence and damage resulting from death, injury or damage to health shall not be affected by the above mentioned limitations (especially section 4). However this shall not affect the applicability of compelling statutory regulations and warranty periods.
  6. For products made of materials provided by the customer, we are only liable for our part of the product. If the customer provides defective material and the defect can only be detected during the following processing the customer shall bear the accrued costs.
    As far as we carry out the processing from components provided or selected from the customer for him and we are obliged to deliver a ready product to the customer, the customer will be liable for the infringements of an industrial property right which result from the insertion of these components. If the use of these components within the object of delivery leads to the injury of trade mark
    rights in the country of the place of delivery, the customer will release us from indisputable or legally ascertained claims of the concerning protective entitled persons. This is also valid if the customer obliges us to acquire the components well-chosen by the customers directly fro
    m the manufacturer in the way of the shortened delivery for the purpose of the installation in the object of delivery.

§ 8 Liability

  1. In every case in which we are obliged to pay damages or to pay reimbursement of expenses due to contractual or statutory b
    asis for a claim, we shall only be liable as far as our executive staff or assistants can be charged for intention, gross negligence or for an injury of life, body or health. Unaffected shall be the liability due to the “Produkthaftungsgesetz” (German Product Liability Act) which constitutes liability without default or a explained guarantee. Unaffected shall be also the liability for culpable infringement of essential contractual obligations; however the liability is insofar limited to the predictable, contractually coherent damage except for the cases of sentence 1 and 2. An alteration of burden of proof to the detriment of the customer shall not be connected to the aforementioned stipulations.
  2. As far as our liability is excluded according to paragraph 1 this shall also apply for our employees in case of direct claims by the customer.
  3. As far as there are no other agreements we shall be obliged to deliver only in the country of place of delivery exempt from industrial and intellectual property rights (herein after referred to: copyrights).
  4. In the case of an infringement of cop rights in the country of the place of delivery by the use of the object of delivery we shall our own costs supply the customer with the right for the further using or to modify the object of delivery in such an appropriate way for the customer that infringements of copyrights no longer exist. Provided that this is not possible in an economically appropriate way or in an appropriate period of time the customer shall be entitled to exercise the statutory right of reduction or to withdraw from contract.
  5. Moreover we shall indemnify the customer from undisputed or legally binding claims of the relevant holder of the copyright.
  6. Our aforementioned obligations are subject to section 8 paragraph 1 terminatory for the case of an infringement of copyright and shall apply also in cases of miscellaneous defects of title accordingly. However they shall only apply if

– the customer informs us immediately about the claimed infringement of the copyrights.
– the customer supports us appropriately in the defense of the claims respectively supports us with the accomplishment of the
– modifications according to section 8 paragraph 4,
– all defenses including amicable solutions shall be reserved as our right,
– the defect of title is not based upon an order of the customer and
– the infringement of copyright is not caused by the arbitrary modification of the object of delivery by the customer or the object of delivery has been used in a way which is contractually not conform.

§ 9 Retention of title

  1. We reserve title to the goods until the complete fulfillment of all payment obligations arising from the delivery contract. Title to the goods shall also remain with us until the customer has fulfilled all liabilities arising from all business connections between the customer and us. In current accounts the retention of title in respect of the objects of delivery (goods subject to retention of title) shall serve as a security for our account balance.
  2. If the customer defaults on his contractual obligations, particularly in case of default of payment, we shall have the right, after granting an appropriate respite – as far as this is not disposable in particular cases – to demand the return of the goods. Acceptance of the returned goods shall constitute cancellation of the contract. We shall be entitled to liquidate the goods after the return, in which we are entitled to sell the goods directly or to sell them at an auction. The proceeds of sale shall be set off with the payment obligations of the customer less appropriate expenses for the liquidation. Further claims in respect of damages, particularly loss of profit, shall be reserved.
  3. In case of levy of execution or other interventions of third parties the customer shall inform us immediately in written form so that we are able to file a claim according to section 771 of the ZPO (Zivilprosessordnung = German Civil Procedure Code). As far as the third party is not able to compensate us for the accrued costs of the amicable and the court proceedings due to the claim according to section 771 of the ZPO, the customer shall be liable for our shortfall.
  4. The customer shall be entitled to sell the goods in a normal course of business; he assigns in advance any claims towards his cust
    omers or third parties which may arise from a resale of the goods in the amount of the commercial invoice (including VAT) of our claim. This does not depend on the instance if the product has been sold without treatment or after treatment. We hereby accept the assignment already. The customer shall have the right to collect the claim after the assignment. Our right to collect by ourselves shall not be affected. We shall be obliged to not to collect the claim as far as the customer duly meets his liabilities out of the collected revenues, is not in default of payment and particularly has not filed for bankruptcy or there is a cessation of payment. In these cases we shall be entitled to demand that the customer informs us about the assigned claims and the debtors, provides us with all necessary information for the collection, delivers us all relevant documents, that the customer informs the debtors (third parties) about the assignment and that he abstains from any acts of disposal of the claims.
  5. The treatment or the alteration of the product by the customer shall be always on our behalf. If the product is assimilated with objects which are not our property we shall acquire joint ownership in the new item in the ratio of the value of the product (commercial invoice, including VAT) to the other assimilated objects at the time of the assimilation. In regard to the new item the regulations according to the product subject to retention of title shall apply.
  6. If the product is inseparably compounded with items which are not our property we shall acquire joint ownership in the new item in the ratio of the value of the product (commercial invoice, including VAT) to the other assimilated objects at the time of the amalgamation. If the amalgamation affects that the item of the customer may be regarded as the main item it shall be agreed that the customer shall pass the joint-ownership to us in pro-rata. The customer shall store this originated ownership on our behalf.
  7. The customer shall also assign the claims which accrue from the connection of the product to a real estate towards a third party in order to secure our claim against the customer.
  8. The goods which are our property shall be underwritten appropriately to the replacement value by the customer at his own costs for the cases of fire, water, theft and burglary. The customer already assigns the rights out of the insurance to us. We hereby accept this assignment.

§ 10 Place of jurisdiction – Place of performance

  1. If the customer is a merchant, a corporate body under public law or a special fund under public law, the place of jurisdiction shall be our place of business; however we have the right to sue the customer at the customer’s general place of jurisdiction.
  2. These terms and conditions shall be governed exclusively by German law and shall preclude the UN agreement on the sale of goods.
  3. The place of performance shall be our place of business unless the confirmation of the order does not say anything else.

§ 11Final provisions

  1. Subsidiary agreements, covenants, modifications or amendments of these conditions or the contract have to be in writing and have to be explicitly marked as those.
  2. Rights out of this contract can only be assigned with our prior written confirmation.
  3. Should any of these conditions be or become invalid or not be performed between us and the customer, this shall not affect the validity of the remaining clauses. The same shall apply in case of a regulatory gap. The parties shall replace any invalid arrangement or fill the regulatory gap by an effective one which conforms as far as possible to the economic purpose of the invalid clause.
  4. The necessary data information of the customer shall be recorded and handled confidentially under the consideration of the Bundesdatenschutzgesetzt (BDSG neu) and the General Data Protection Regulation (GDPR). The customer shall be advised that we impose record, process and use the data
    information in connection with the contractual relationship only as far as this is necessary for the correct order processing and information.
    These General Conditions of Sale and Delivery are a translation of the German original Conditions of Sale and Delivery. In case of a conflict or a discrepancy between the translated version and the German original version, the German terms shall prevail and shall be legally effective.

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Celsius42 GmbH
Hermann-Hollerith-Str. 11
52249 Eschweiler
Deutschland

+49 (0) 24 03 – 7829 230
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