General terms and conditions
of CurTec USA Inc., of Somerset, N.J., United States
I. Definitions, Applicability of Terms and Conditions
In these General Terms and Conditions, unless expressly provided otherwise, the following words and expressions shall have the following meanings:
‘CurTec’ means CurTec USA Inc. or its legal successor;
‘Customer’ means a business buying Products from CurTec;
‘Products’ encompasses all goods, services, materials, and resources in the broadest sense of the word;
‘in writing’ also includes messages sent by fax or transmitted electronically by e-mail/over the Internet;
‘Drawings and Designs’ also includes schedules, samples, studies for clients, documentation, research reports and certificates, manuals, drafts, projects, and any other items, particularly database files, audit reports, and certificates, prepared by CurTec for a Customer;
“Mould”: also includes casts and auxiliary tools.
These Terms and Conditions shall apply to all offers, quotations, accepted orders, assignments, arrangements and/or other agreements, as well as all negotiations conducted with third parties (whether or not through the agency of authorized representatives), and they shall so apply to the exclusion of any and all other terms and conditions, except where CurTec expressly confirms in writing that such other terms and conditions apply. Any applicability of other terms and conditions shall extend exclusively to the contract for which said written confirmation is given. Deviations from these Terms and Conditions shall only be valid if made in writing. Any Customer who has made any purchase subject to these Terms and Conditions shall be deemed to have also tacitly accepted the applicability hereof to any and all subsequent orders placed with CurTec, irrespective of whether such order has been confirmed in writing.
Offers and quotations, irrespective of their form, shall be free of obligation until such time as the ensuing assignment has become binding in the manner described in Clause 7 below.
Except in cases of gross negligence (grove schuld) or wilful misconduct (opzet), CurTec shall not be liable for any loss or damage caused by inaccuracies in any advice given or data provided in relation to Products to be delivered.
CurTec shall not be liable for inaccuracies in any data, Drawings and Designs or advice given or provided to CurTec by or on behalf of the Customer for purposes of performing the agreement. CurTec will rely on, and shall not be under any obligation to assess, the accuracy of data or documentation received from or via the Customer. The Customer indemnifies and holds CurTec harmless from any and all third-party claims arising from any inaccuracy as referred to above.
Unless agreed otherwise, all prices stated shall be prices for delivery in accordance with the terms of delivery specified in the order confirmation (based on the latest version of the ICC Incoterms), inclusive of the costs of standard packaging and exclusive of value added tax. CurTec in its sole discretion shall decide which type of efficient packaging and mode of dispatch will be used. Unless expressly agreed otherwise, the Customer shall be responsible for the payment of any and all additional costs arising in connection with the contract after its conclusion – such as freight charges, import or export duties, station charges, warehousing and security fees, the costs of inward and outward clearance, taxes, or other levies and charges – as well as for the consequences of any exchange rate changes.
As regards Products which CurTec is required to deliver on demand or on a fixed date in the future, or which CurTec does not (all) have in stock on receipt of the order and which it will mark for delivery as soon as possible, CurTec reserves the right, without prior notice, to charge the prices and costs applicable at the time of delivery, irrespective of whether prior order confirmation has been given.
III. Orders, Assignments and Other Agreements
CurTec shall not be deemed to have entered into a contract with the Customer until it has unconditionally accepted or confirmed the Customer’s order in writing. CurTec’s order confirmation shall be deemed to be a complete and correct representation of the relevant contract unless the Customer expressly informs CurTec otherwise in writing within 2 business days of receipt of the order confirmation. The provisions above apply equally to any ensuing contracts and to amendments to existing contracts.
In the event of any cost-affecting circumstances arising after acceptance of an order or after a sale, such as changes in the costs of raw materials, goods, wages, exchange rates, import duties, etc., CurTec reserves the right to charge the price changes on to the Customer. The Customer will be duly informed.
After acceptance of an order, no changes desired by the Customer shall be implemented until CurTec has confirmed the relevant changes in writing. If CurTec decides, for reasons of its own, to reject the changes, the Customer shall not be entitled to dissolve the contract, or any part thereof, and shall remain fully liable to compensate CurTec for costs already incurred as well as for any loss of profit and underutilization. No contract can be annulled or dissolved without the prior written consent of CurTec. In the event of any annulment or dissolution by the Customer, the Customer shall be liable to pay CurTec compensation for the costs already incurred as well as for any loss of profit and underutilization.
If it must reasonably be assumed that the Customer’s financial position is such as to warrant the need for the issuance of a guarantee as security for the payment of costs incurred, or to be incurred, by CurTec for the Customer, CurTec may demand that the Customer furnish a bank guarantee or prepay in full or in part the agreed contract price. CurTec may postpone performance of the contract until the security demanded is furnished. If the Customer fails to furnish security within 10 business days of having been asked to do so, the Customer shall be in default without prior notice and CurTec may dissolve the contract without court order. The Customer shall be liable for all costs, losses and loss of profit arising from the assignment and the early contract termination.
CurTec may decide at its sole discretion to retain the services of third parties to execute any order.
IV. The Products
CurTec shall also be deemed to have complied with its contractual obligations if the quantity of Products delivered is 10% over or under the volume ordered.
Component parts or other goods to be supplied by or on behalf of the Customer to CurTec in order to be processed or integrated into the Products shall be delivered, with an additional 10%, in a timely fashion, without charge, and postage paid to CurTec’s plant. The Customer shall be liable for the component parts or other goods supplied, as well as for their proper application. Except when expressly agreed otherwise in writing, CurTec will operate on the assumption, without further inspection, that the component parts and other goods in question are suitable for use, integration or processing into the Products to be made for the Customer. Should any such component parts be supplied late or be unfit for further processing by CurTec and consequently cause any production halt, the Customer shall be liable for all loss and damage sustained by CurTec as a result of the production halt.
Notwithstanding anything to the contrary provided herein, CurTec warrants, on delivery of any Product made by or on behalf of CurTec, that the Products supplied shall be free from defects in material and workmanship, it being understood, however, that the workmanship of specified Products must be duly defined beforehand in the specifications. In case of any delivery of Products made by third parties, CurTec merely warrants that the Products conform to the specifications and materials agreed between CurTec and its supplier. All other warranties implied by law are excluded.
THERE ARE NO EXPRESS WARRANTIES EXCEPT AS SET FORTH IN THESE TERMS AND CONDITIONS AND CURTEC EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WITH REGARD TO THE PRODUCTS SOLD BY CURTEC,WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS, IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL CURTEC BE LIABLE TO CUSTOMER IN ANY MANNER OR TO ANY EXTENT, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, OR WHETHER BASED ON CONTRACT, TORT, STRICT OR PRODUCTS LIABILITY, OR ANY OTHER LEGAL THEORY, EXCEPT AS PRECLUDED BY LAW. SUCH EXCLUDED INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES INCLUDE LOSS OF PROFITS, EXPENSES, LOSS OF PRODUCTION, LOSS OF USE, DAMAGE TO PROPERTY, OR ANY OTHER INDIRECT DAMAGE OR LOSS OF ANY KIND OR CHARACTER TO CUSTOMER OR ITS CUSTOMERS. CURTEC SHALL NOT BE RESPONSIBLE FOR THE USE OF THIS PRODUCT BY CUSTOMER IN A MANNER TO INFRINGE ON ANY PATENT OR ANY OTHER INTELLECTUAL PROPERTY RIGHTS HELD BY OTHERS.
VI. Delivery, Change of Circumstances, Changes in Instructions
Stated times of delivery shall be approximate only and shall not be of the essence. CurTec shall not be liable for the consequences of any non-compliance with a stated time of delivery, and no such non-compliance shall confer on the Customer any right to be paid compensatory damages or to refrain from satisfying any relating obligation incumbent on the Customer. The Customer can only dissolve the contract subject to the conditions for annulments as laid down in Clause 9.
CurTec may decide to supply Products ordered in full or in a series of partial deliveries. In the latter event, CurTec may invoice and demand payment from the Customer for each single partial delivery. If and to the extent that the Customer fails to pay for a partial delivery or fails to meet any other obligations under the relevant contract or any previous contract, CurTec shall not be obliged to make any subsequent partial delivery and may dissolve the contract (insofar not yet performed) without prior notice of default or court order, all this without prejudice to its right to claim compensatory damages. The Customer shall not have any right to claim damages or otherwise in any such event.
In the event that the circumstances known to CurTec when scheduling its time of delivery undergo any change, CurTec may extend the term of delivery by such a time period as will be necessary to execute the order under the new circumstances. If the requisite additional work cannot be fit into CurTec’s work schedule, the work shall be completed as soon as the work schedule so permits in CurTec’s sole discretion.
In case of any change in instructions requiring the performance of work or the provision of services in excess of the work and services agreed between the parties at the outset of the contract, the term of delivery shall be extended by such a time period as will be necessary to supply or obtain the materials and component parts required and to perform the additional work. If this additional work cannot be fit into CurTec’s work schedule, it shall be completed as soon as the work schedule so permits in CurTec’s sole discretion.
VII. Reservation of Ownership, Risk of Loss, Right to Postpone Performance and to Dissolve Contract
CurTec shall retain the ownership of the Products delivered by it to the Customer until the Customer has fully complied with its obligations towards CurTec to pay the consideration agreed as well as any claims arising from any breach of contract.
As long as the Customer has in its possession any Products in respect of which CurTec has reserved ownership, the Customer shall, on CurTec’s request, immediately – without any court order being required – return the Products to CurTec. The Customer must keep the relevant Products separate from any other products and identify them as the property of CurTec. No products that are subject to a reservation of ownership may be pledged or otherwise assigned by way of security to third parties (which shall also include any hire-purchase transaction), nor may they be in any way sold, transferred, encumbered, or moved to a location other than that agreed between the parties.
The Customer shall carry the risk of loss and pay all costs involved in any enforcement of this reservation of ownership. The Customer shall insure the Products concerned against all risks that are commonly insured - expressly including the risk of theft, fire and water or storm damage - or that CurTec wishes to see insured. The Customer shall promptly inform CurTec of any claim by third parties against Products that are subject to this reservation of ownership.
In the event that the Customer fails to take receipt of any Products in a timely fashion or fails to comply with its obligations, or if the Customer applies for a suspension of payments, or if a winding-up order is made against the Customer at its own request or on the application of a third party, or if the Products or any of the Customer’s moveable or immovable property are attached, or if the Customer interrupts its business operations (upon its dissolution or liquidation or in case of a strike or a business shutdown) or threatens to interrupt its business operations or approaches its creditors to discuss a debt rescheduling arrangement or repayment schedule, or if CurTec must assume in all reasonableness that any of the situations listed above will shortly occur, CurTec may give the Customer notice in writing that it will postpone all further deliveries of Products or services and all further payments (if applicable) and that it will proceed to dissolve the contracts with the Customer in full or in part without prior court order, all this without prejudice to any and all other rights which CurTec may have, including the right to claim full damages and to take back any goods. The Customer hereby agrees in advance to any such action and authorizes CurTec to enter all of the Customer’s premises and buildings at the relevant time in order to take back the Products already delivered by CurTec but not yet paid by the Customer. If any of the events listed above occur, any and all amounts which the Customer owes to CurTec will become fully due and payable on demand.
Title to all products sold pursuant to this agreement shall remain in the name of CurTec until full payment has been made, and to the extent applicable, CurTec reserves a security interest in, and Customer hereby grants CurTec a security interest in the products sold pursuant to this agreement and the proceeds thereof, with the right to take possession and dispose of the products and such proceeds if any such amount is not paid when due. Customer agrees to execute and deliver, upon Curtec’s request and at Customer’s expense, any and all instruments, including without limitation, financing statements under the Uniform Commercial Code (“UCC”) and amendments thereto, which Seller may deem necessary or desirable in order to evidence record or perfect such title and security interest, and Customer specifically authorizes CurTec to file such instruments with such information and in any jurisdiction deemed necessary by CurTec without the signature or any authorization of Customer, to the extent permitted by law. With each purchase order, Customer represents to CurTec that Customer is solvent. In the event of Customer’s default, CurTec shall have the rights of a secured party, including, without limitation, those rights under the UCC. Products paid for and held for the Customer shall be held at the risk and expense of the Customer.
VIII. Force Majeure
In the event of force majeure, which includes Acts of God, epidemic disease, war, international or national conflict and its preparatory actions, measures of domestic, foreign, or supranational authorities (including, but not limited to decisions on import restrictions), the loss of materials to be processed, fire, sabotage, strikes or industrial conflict, unavailability of public utilities, unforeseeable and sudden loss of manpower, and any loss or theft of available manufacturing resources (such as machines, tools, or the Mould), interruptions in the business operations or in the supply of products, materials, raw materials or resources, or any circumstances which would render delivery by CurTec unreasonably onerous, CurTec may either postpone its deliveries during a reasonable time period determined by CurTec or dissolve the contract – whether immediately or on expiry of said reasonable time period – without prior court order by giving the Customer written notice of termination accompanied with a proper statement of reasons. No such action shall confer on the Customer any right to claim compensatory damages. If CurTec has already performed part of the contract on the occurrence of an event of force majeure, the Customer shall compensate CurTec for the costs incurred and/or pay a proportionate part of the overall price.
IX. Intellectual and Industrial Property Rights
All Drawings and Designs prepared by CurTec, including the copyrights therein, shall be and remain CurTec’s property at all times, both during the term of the contract and at any time after the contract has been fully performed. Without the prior written consent of CurTec, no Drawing or Design may be fully or partly reproduced, commercially exploited, or shown or provided to third parties for any purpose whatsoever. The Customer shall be under an obligation to treat all Drawings and Designs provided by CurTec as confidential. This means that the Customer shall be liable to CurTec for any and all loss or damage resulting from any third party seeing or having access to any Drawing or Design. The Customer shall be obliged to return all Drawings and Designs on CurTec’s first request within the term stated by CurTec. Any violation of this obligation shall render the Customer liable for damages.
CurTec retains all intellectual property rights in the Drawings and Designs, also after delivery to the Customer. The Customer shall be liable for any and all loss and damage resulting from any infringement of CurTec’s intellectual property rights committed through the use of Drawings and Designs made available by CurTec. The Customer shall be obliged to inform CurTec immediately if it becomes aware of any infringement of CurTec’s rights, irrespective of whether the Customer was invoiced for the creation of the Drawings and Designs.
The Customer shall indemnify and hold CurTec harmless from any and all third-party claims arising from the use of the Drawings and Designs provided by or on behalf of CurTec.
X. Complaints, Liability
The Customer must verify the quantity of Products delivered on receipt. Complaints about the quantity delivered must be made promptly after the Customer could reasonably have inspected the consignment, but no later than 2 business days after receipt of the Products, failing which the quantity of Products as reported on the bill of carriage, delivery note, or similar document shall be deemed to have been accepted by the Customer.
Any complaints concerning the improper execution of orders must be made in writing within 5 days of delivery. Potential defects under Clause 13 must be reported to CurTec in writing within 48 hours of the Customer having discovered them; the deadline for complaints of this kind shall be 6 months after delivery.
On expiry of any of the time periods referred to above, the Customer shall be deemed to have fully accepted the Products delivered and CurTec shall have no obligation to consider any complaints reported thereafter.
If the Customer has complained in a timely fashion and the Products are proven to be defective under Clause 13, CurTec shall at its own choice either repair the relevant defect or redeliver the Products in full or in part, provided that the Customer has not used any of the Products otherwise than as instructed in the manual supplied by CurTec to the Customer. CurTec shall have no further obligation in this regard, and shall, in particular, be under no obligation to compensate the Customer or any third party for any direct or indirect loss or damage sustained. This means that CurTec shall not in any way be liable for any consequential losses, including but not limited to delays and loss of profit, sustained by the Customer or any third party.
The Customer shall indemnify and hold CurTec harmless from any and all third-party claims for payment of any damages arising directly or indirectly from the contract performance and/or the Products delivered.
CurTec shall not be liable for any costs, losses or interest incurred by the Customer or any third party as a direct or indirect result of any act or omission by persons in the employ of CurTec or any defect in the Products supplied by CurTec to the Customer.
CurTec shall not consider any complaints made in situations where the Customer has defaulted in any way on any of its obligations accrued under any contract concluded with CurTec .
CurTec shall not be liable for any direct or indirect loss or damage, whatever its name, which may arise for the Customer or any third party as a result of any obligations having been postponed or annulled on the occurrence of an event of force majeure as defined in Clause 16.
Complaints about invoices shall only be taken under consideration if and insofar as they have been made in writing to CurTec within 3 business days of receipt of the invoice.
All payments shall be made in accordance with the agreed payment conditions stated in the invoice. In case of any late payment, the Customer shall be automatically in default upon expiry of the relevant term of payment, without prior notice of default or other warning being required for that purpose. In such an event, CurTec shall suspend all further execution of Customer’s orders already accepted until the date of full payment or for such other time period as CurTec may determine. Should said time period be exceeded, CurTec may decide to cancel the relevant order(s) and claim damages.
From the date payment should have been received, CurTec shall charge the Customer interest at 1.5% of the invoiced amount for each month or part of a month by which the Customer exceeds the due date. The Customer shall be automatically in default, without prior notice of default or other warning being required, upon expiry of the relevant term of payment or in the event of any suspension of payment or (application for a) winding-up order, a liquidation, or any order for the appointment of a guardian, administrator or liquidator.
All judicial and extrajudicial costs (of collection) reasonably incurred by CurTec as a result of any late compliance or non-compliance by the Customer with its payment obligations are fully payable by the Customer as the defaulting party. CurTec shall be at liberty to decide which outstanding debts shall be settled first with any payment received from the Customer, it being understood that payments received shall first be used to settle any interest accrued and costs incurred.
CurTec may from time to time request that the Customer provide additional guarantees as security for its payment obligations. If the Customer fails to furnish security within 10 business days of having been asked to do so, the Customer shall be in default without prior notice and CurTec may dissolve the contract or consider the assignment cancelled without court order. The Customer shall be liable for all costs and losses arising from the assignment and the early contract termination.
CurTec shall also be entitled to demand that the Customer sign a contract of assignment of any claims the Customer may have against its own customers, and the Customer hereby agrees to sign any such contract, if requested by CurTec, as security for the payment of its debt(s) to CurTec.
If the Customer instructs CurTec to develop and produce the Mould, or if the Customer provides an in-house Mould of its own to CurTec for the manufacture of Products, the parties shall enter into a separate contract to lay down all additional terms and conditions that will apply.
XIII. Governing Law, Disputes
All contracts entered into subject to these General Terms and Conditions of CurTec, as well as any ensuing contracts and any and all negotiations conducted, offers made, quotations issued, orders accepted, assignments, and the like, shall be governed exclusively by the laws of the Netherlands.
Any and all disputes arising between CurTec and the Customer in relation to the performance of a contract or to any, offers, quotations, orders accepted, assignments, etc. to which these General Terms and Conditions apply shall exclusively be submitted to the District Court of Breda, The Netherlands, unless the dispute falls under the subject-matter jurisdiction of a sub-district court in the judicial district of Tilburg, The Netherlands, in which case the dispute shall be submitted to the relevant competent court.
XIV. Final Provisions
CurTec may amend these General Terms and Conditions from time to time. Amendments shall become effective immediately, which means that they shall apply retroactively to all assignments in progress and all orders already confirmed in writing, provided that such retroactive application is not detrimental to the Customer.
CurTec expressly excludes the applicability of any terms and conditions of business used by the Customer. No such other terms and conditions shall be binding on CurTec except where CurTec expressly accepts their applicability in writing.
If any provision of these General Terms and Conditions is declared void, the other provisions shall remain in full force and effect. The parties shall replace the void provision with a new, valid provision which shall approximate the original provision as closely as possible.
To the extent that any provision contained herein is inconsistent with the law, that provision shall be modified to the extent necessary to comply with the law.