General Terms and Conditions (GTC) of Ceresana e.K.
Status: 12.08.2016

§ I.1 General – Scope
(1) These are the General Terms and Conditions of Use and Business (hereinafter: “GTC”) of the company Ceresana, registered merchant, owner Oliver Kutsch (hereinafter: “Ceresana”).
(2) Ceresana’s offer is exclusively directed at Purchasers who
– Entrepreneurs are in the sense of §§ 14, 310 paragraph 1 BGB, i.e. natural or legal persons or partnerships with legal capacity who, when concluding a legal transaction, act in the exercise of their commercial or independent professional activity, in particular also users in the freelance and scientific sector.
or
– are legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB).
(3) The business relationship between Ceresana and the Customer shall be governed exclusively by these GTC in the version valid at the time of the order. They shall also apply to all future transactions between Ceresana and the Purchaser without the need for any special reference. Deviating GTC of the Purchaser shall not become part of the contract even if Ceresana does not expressly object to them.
(4) If the contractual language is German, only the German version of these GTC shall become part of the contract. If the contract language is English, only the English version of these GTC shall become part of the contract. The contract language for contract studies is determined in the individual agreement. When an order-independent study is ordered, the contract language is determined by the language used for correspondence between Ceresana and the Customer. Only English and German can be the contract language.
(5) Any waiver of one or more conditions of these GTC shall be effective only if made in writing and signed by a legal representative of Ceresana. A waiver of the right to pursue a violation of the GTC shall not be construed as a waiver of the right to pursue subsequent violations.
(6) By sending the order or signing the contract regarding the preparation of an order study, the customer agrees to these GTC.

(7) Ceresana reserves the right to change these GTC at any time without prior notice.
§ I.2 Offer, confirmation and acceptance
(1) The prices and study descriptions listed or mentioned on the website (www.ceresana.com) and in Ceresana’s brochures do not constitute an offer by Ceresana to the Purchaser. The representations merely constitute an invitation to the Purchaser to make a binding request (order) on its part to Ceresana subject to these GTC. This can be done by phone, fax, mail, email or the online order form at www.ceresana.com. All orders placed are subject to subsequent acceptance by Ceresana. Acceptance is made by sending an order confirmation subject to the availability of the ordered study.
(2) When an order is placed for the preparation of a study, the individual legal part of the contract is regularly negotiated by the contracting parties. The contract shall not be concluded until it has been signed by both parties and has been received by both parties in signed form.
§ I.3 Cooperation obligations of the customer
The Purchaser undertakes to provide Ceresana free of charge with any assistance required to fulfill the purpose of the contract.
§ I.4 Price and payment
(1) All prices shown by Ceresana are in Euro including standard shipping and, for Purchasers with an invoice address in Germany, plus German VAT at the applicable rate. If the customer wishes express shipping, this amount will be charged additionally.
(2) When purchasing order-independent studies, new customers and customers with an invoice address abroad can only pay in advance. The study will not be shipped until payment has been received in full. Repeat customers with billing address in Germany can also pay by invoice. However, Ceresana reserves the right to insist on payment in advance at any time and without giving reasons.
(3) When placing an order for the preparation of a study, the payment modalities, which are regulated for the purchase under (2), are made by individual agreement.
(4) Unless expressly agreed otherwise, the price shall be payable within 14 days of invoicing without any deductions. The deduction of a cash discount is also only permissible if an individual written agreement has been made.
(5) If the Customer is in default of payment, Ceresana shall be entitled to engage a collection agency at the Customer’s expense after unsuccessful reminder. The costs for the collection of outstanding invoice amounts shall be borne by the customer. In addition, Ceresana is entitled to charge default interest at a rate of 8% p.a. above the base interest rate announced by the European Central Bank as of the occurrence of the default in payment. Ceresana reserves the right to claim higher damages for delay.
§ 5 Offsetting and rights of retention
(1) The Purchaser shall only have the right to offset if its counterclaims have been legally established or are undisputed.
(2) The Customer shall only be entitled to exercise a right of retention to the extent that its counterclaim is based on the same contractual relationship.
§ 6 Delivery and transfer of risk
(1) The risk of accidental loss and accidental deterioration shall pass to the Purchaser as soon as the study has been handed over to the person performing the transport.
(2) If Ceresana delivers Studies in partial deliveries, each partial delivery shall constitute a separate contract. In the event that one or more partial deliveries are defective, the Purchaser shall not be entitled to withdraw from subsequent partial deliveries.
§ I.7 Retention of title
The delivered study remains the property of Ceresana until full payment has been received.
§ I.8 Acceptance
In the case of commissioned studies, acceptance of the study commissioned by the Customer shall take place through the (final partial) payment taking place after handover. If no payment is due after handover, acceptance shall take place when the study is put into use, but no later than 4 weeks after handover. Ceresana agrees to make reference to this in the letter accompanying the study at the time of delivery.
§ I.9 Agreed property, warranty and liability
(1) It is noted and Purchaser acknowledges that the results and conclusions in Ceresana’s studies are based on information obtained in good faith from primary and secondary sources, the accuracy of which Ceresana cannot always guarantee. Although the information in Ceresana’s studies is believed to be accurate at the time of completion by Ceresana, Ceresana cannot and does not guarantee the accuracy or completeness of this information. The studies are provided as a general basis and should not be construed as legal or financial advice. Ceresana assumes no liability for actions based on information from the studies that subsequently prove to be incorrect.
(2) Ceresana’s liability for personal injury is unlimited. The same shall apply to other damages incurred by the Purchaser as a result of a breach of duty committed by Ceresana with intent or gross negligence. Ceresana shall also be liable for typical contractual damages incurred by Purchaser as a result of a material breach of contractual duty committed by Ceresana if Ceresana is only guilty of slight negligence. Otherwise, Ceresana’s liability for slight negligence is excluded. An essential contractual obligation in the aforementioned sense is an obligation the fulfillment of which makes the proper execution of the contract possible in the first place and on the fulfillment of which the contractual partner regularly relies and may rely.
(3) In the case of the purchase of a study that is not dependent on an order, warranty rights of the Purchaser shall require that the Purchaser has duly complied with its obligations to inspect and give notice of defects pursuant to Section 377 of the German Commercial Code (HGB). The complaint must be made in writing.
(4) When placing an order for the preparation of a study, warranty rights of the Purchaser shall require that
(a) he has reserved them in writing at the time of acceptance
or
(b) in the event of obvious defects, he notifies Ceresana in writing of the defect before the expiry of four weeks after handover
or
(c) in the case of defects that are not obvious, he notifies Ceresana in writing of the defect before the expiry of one year after acceptance,
Whereby for the variants (b) and (c) may only give notice of defects of which he was not aware at the time of acceptance. These exclusion periods shall not apply in the event of fraudulent conduct on the part of Ceresana.
(5) If Ceresana does not perform or does not perform in accordance with the contract despite the due date, Purchaser may only assert warranty rights if it notifies Ceresana in writing of the defects under the conditions of (3) or (4) with a reasonable grace period and the grace period has expired without success. The setting of a period of grace may be omitted if the setting of a period of grace is unreasonable for the Purchaser or dispensable in accordance with the statutory provisions.
(6) If Ceresana fails to perform or remedy the defect after the expiration of a reasonable grace period set by the Purchaser due to a circumstance for which Ceresana is not responsible, the Purchaser shall only be entitled to rescind the contract after the unsuccessful expiration of another reasonable grace period set by the Purchaser. This shall not apply if the setting of a deadline is unreasonable for the Purchaser or dispensable in accordance with the statutory provisions.
(7) Events of force majeure and other circumstances for which Ceresana is not responsible and which make it impossible to execute accepted orders on schedule shall release Ceresana from the accepted obligation to perform for the duration of their existence. During this period, the Purchaser shall not be entitled to set Ceresana any grace periods with the aim of asserting warranty rights after their fruitless expiry. If Ceresana is responsible for the impediment to performance, Ceresana’s obligation to perform and the Purchaser’s right to set a grace period shall remain unaffected; however, the grace period must be calculated in such a way that the impediment to performance can probably be remedied within it. Ceresana shall inform the Purchaser immediately after the occurrence of the impediment to performance about the period of time that is expected to be required to remedy the impediment to performance.
(8) The limitation period for all claims of the Purchaser due to defects as well as for damages and reimbursement of futile expenses shall be one year from the legally determined beginning of the limitation period. The statutory limitation of claims against Ceresana due to intentional or grossly negligent breaches of duty, due to personal injury, due to the assumption of a guarantee, under the Product Liability Act, in the event of fraudulent conduct by Ceresana and insofar as the law mandatorily prescribes longer periods elsewhere shall remain unaffected.
(9) Insofar as Ceresana’s liability is excluded or limited, this shall also apply to the personal liability of employees, representatives and vicarious agents.
(10) The Purchaser is obliged to take all actions that become necessary and can reasonably be expected of him in order to prevent damage and to mitigate damage.
§ I.10 Rights of use
(1) The studies prepared by Ceresana are protected by copyright and are intended exclusively for the Purchaser’s own use. All rights reserved. Copyright protection exists worldwide. Violation of the copyright provisions constitutes a violation of the law, which will be prosecuted under civil and criminal law.
(2) Ceresana offers the studies produced by Ceresana in three different licenses.
The Corporate License (PDF file) licenses the purchaser to use the study for its own operational purposes at all company locations and subsidiaries in which it holds more than 50% of the shares.
The premium license (PDF file) and the basic license (bound book) license the purchaser to use the study within a site for his own operational purposes.
(3) Use beyond that described herein is not permitted. In particular, without the express written consent of Ceresana, the Purchaser is prohibited from passing on or making available the Study or excerpts from the Study to third parties in any form whatsoever (paper, image or data carriers, microfilms, Internet, etc.).), to publish the Study, to grant sublicenses, to duplicate, modify, rent, translate or otherwise exploit the Study. The same shall apply to independent locations and foreign as well as parent and subsidiary companies of the ordering company.
(4) If the Customer wishes to use the Software beyond the use described herein, Ceresana may, upon request, offer to purchase the corresponding rights. In the event of any further use of data by the Customer expressly agreed in writing, Ceresana must be expressly named as the author.
(5) Copyright and other proprietary notices within the studies may not be removed or altered.
(6) Should the Purchaser withdraw from the contract pursuant to § 346 BGB at a time when it has already received the ordered Study, it must immediately remove all digital embodiments of the Study (Pdfs) from all systems, storage media and other file carriers and immediately destroy all physical embodiments of the Study. In addition, the Customer shall submit a separate written declaration that it has performed the aforementioned actions.
(7) If the Purchaser culpably violates the above provisions, a contractual penalty in the amount of € 50,000 shall become due – taking into account any claims for damages by Ceresana, which are expressly reserved.
§ I.11 Privacy
The protection of the personal data of the customer is an important concern for Ceresana. For details on the collection, processing and use, the Customer is referred to Ceresana’s Privacy Policy on the website www.ceresana.com.
§ I.12 Other
(1) This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) The place of performance and exclusive place of jurisdiction for all disputes arising from this contract is Ceresana’s place of business in Constance.
(3) The Purchaser shall not be entitled to transfer individual or all rights under this contract to third parties without Ceresana’s prior written consent.
(4) If individual provisions of these GTC are or become invalid, or if these GTC contain loopholes, this shall not affect the validity of the remaining provisions. In place of the invalid provision, the valid provision shall be deemed to have been agreed which most closely reflects the meaning and purpose of the invalid provision. In the event of gaps, the provision shall be deemed agreed which corresponds to what would have been agreed in accordance with the meaning and purpose of these GTC had the matter been considered from the outset.

Constance, 12.08.2016

Ceresana
Mainaustraße 34
78464 Constance
Germany

Tel.: +49 7531 9429 70

E-mail: info@ceresana.com
www.ceresana.com