Terms and Conditions

General Conditions of Sale for the Product Division Creative
- State of January 01st, 2017 -

 

I.    Scope

  1. We (the Supplier) supply goods exclusively in accordance with these General Terms and Conditions of Delivery and Payment. These terms apply to all deliveries by us, unless the parties to the contract have agreed otherwise expressly and in writing. The statutory provisions shall also apply.

  2. The Customer’s general terms and conditions shall not apply in any case, even if we do not object to a reference by the Customer to its general terms and conditions, regardless of the form in which and time at which such reference is made. The Customer’s general terms and conditions may only have effect in relation to us if we have recognised them expressly and in writing. Deliveries shall not amount to acknowledgement of the Customer’s general terms and conditions.

  3. Acceptance of a delivery shall be considered acknowledgement of these General Terms and Conditions of Delivery and Payment.

  4. Our General Terms and Conditions of Delivery and Payment shall also apply to any transactions concluded at a later date between us and the Customer, even if no reference is made to them in the specific case.

II.    Conclusion of contract

  1. Orders shall only be accepted once they have been confirmed in writing by the Supplier. Orders and agreements, as well as additions and amendments to an order, made verbally or on the telephone require written confirmation by the Supplier before they are legally binding; receipt by the Customer of the delivery note or performance of the delivery shall also be treated as confirmation.

  2. Offers by the Supplier are subject to confirmation.

  3. If the Supplier includes documents, such as illustrations, drawings or weight and measurement data, with an offer, such information shall be treated as approximate only, unless marked expressly and in writing as binding.

III.    Prices for Germany & Europe/World

Germany:

  1. The prices on the Supplier's price list at the date of delivery shall apply in each case, unless a fixed price has been expressly agreed.
  2. The prices include postage, freight (excluding land freight and cartage) and packaging costs where the net value of the goods (invoice value net of VAT) is more than €250. A pro rata postage and packaging charge of €9.00 shall be applied to orders with a net value between the minimum order value of €100 and the value for inclusive postage, freight and packaging above €250.  Further costs for deliveries at scheduled dates or express deliveries, requested by the buyer, are at his expense.
  3. Deliveries are made in the specified packaging units. Order quantities that are less than the quantities in the packaging units shall be rounded up.

Europe/World:

  1. The prices on the Supplier's price list at the date of delivery shall apply in each case, unless a fixed price has been expressly agreed. The minimum order value is €1500. Any order with a net value less than €1500 shall be subject to an additional handling charge of €25.
  2. All deliveries are ex the Supplier's works (74321 Bietigheim-Bissingen Germany, Fritz-Lieken-Straße 7-9). The current Incoterms apply. Deliveries are made in the packaging units specified in the current price lists. Order quantities that are less than the quantities in the packaging units shall be rounded up to the next complete packaging unit.

IV.    Payment terms

  1. The Supplier’s invoices must be paid within 30 days of the invoice date. If payment is made within eight days of the invoice date, the Customer is entitled to a 2% discount from the net value of the goods.

  2. The Supplier is entitled to make deliveries for cash on delivery.

  3. The Supplier reserves the right to accept bills of exchange and cheques. In each case, bills of exchange and cheques shall only be accepted on account of payment. The Customer shall bear the costs of discounting and collection. The Supplier accepts no liability for timely presentation and protest. No discounts shall be granted for payment by bill of exchange.

  4. Payments shall not be deemed to have been made until the amount has been unconditionally credited to the Supplier's account.

  5. In the event that the Customer is in default in payment under an existing contract for more than 10 days or has ceased to make payments or if there has been a substantial deterioration in the Customer’s financial circumstances, the Supplier’s claims under all existing contracts with the Customer shall become due for payment immediately; deferments or other postponements in payment - including accepted bills of exchange - shall terminate; the Supplier shall be entitled to demand security for deliveries that have not yet been made.

V.    Delivery period

  1. Delivery deadlines and delivery periods are always only approximate.

  2. The Supplier's delivery obligation shall be suspended for as long as the customer is in arrears with a liability.

  3. Force majeure, breakdowns in operation, delays in delivery by suppliers, shortages of raw material, energy or labour, strikes, lockouts, difficulties in obtaining transport, traffic disruptions, orders by public authorities or the lack of governmental or other approvals required to perform the delivery shall release the Supplier from its performance obligations for the duration of the disruption and to the extent of its effect, as long as the disruption has not been caused intentionally by or as a result of the gross negligence of the Supplier. The Supplier shall also not be liable in the above circumstances if such circumstances occur during a pre-existing delay.

  4. In the event that the unforeseen circumstances within the meaning of paragraph 3 substantially change the economic significance or the content of performance by the Supplier or have a substantial impact on the Supplier’s business, the Supplier shall be entitled to withdraw from the contract. The Customer in this case shall only have a right to refunds; any other claims, in particular claims for damages, are excluded.

  5. The Supplier is entitled to make partial deliveries; partial deliveries may be invoiced separately.

  6. If the Supplier is in arrears with delivery, the Customer may withdraw from the contract if the Customer has set an appropriate final deadline for the Supplier and that deadline has passed without effect. If the delay is limited to a partial delivery, the Customer may only withdraw from the contract as a whole under the above conditions if the Customer has no interest in partial performance. Claims for compensation for damage caused by delay and claims for damages in lieu of performance are limited to damage typically foreseeable for the Supplier on conclusion of contract and to a maximum of 2 times the net value of the goods.This shall not apply if delay or non-performance has been caused intentionally by or as a result of the gross negligence of the Supplier.

VI.    Shipping & transfer of risk

  1. Risk shall transfer to the Customer at the latest on dispatch of the goods. This shall also apply to partial deliveries if the Supplier accepts the shipping costs or if the Supplier transports the delivery. Goods shall be shipped in all cases ex the Supplier’s works or warehouse at the Customer's risk. No liability is accepted for loss or damage during transport.

  2. If shipment is delayed as a result of circumstances for which the Supplier is not responsible, the risk shall transfer to the Customer on the date at which the delivery is ready for dispatch.

  3. If the Customer has not specified particular shipping instructions that have been confirmed by the Supplier in writing, the Supplier shall select the shipping method and route. The Supplier is not obliged to insure deliveries.

VII.    Retention of title

  1. The Supplier retains title in the goods that it has supplied until full payment all claims – including claims that arise in the future – under the business relationship, including all ancillary claims and until the bills of exchange and cheques provided for this purpose have been discharged/cashed in. In the case of transfer of claims to an open account, the retention of title shall apply to the applicable balance. Retention of title extends to the products of processing. If the Supplier's goods are processed, combined with or mixed with other material, the Supplier shall acquire joint ownership of the product that is created, in proportion to the value of the Supplier’s goods to the value of the other material. Transfer of possession shall be replaced by the Customer holding such products in safe custody free of charge on behalf of the Supplier in accordance with normal commercial prudence.

  2. The Customer hereby assigns to the Supplier as security all claims from sale of goods in which the Supplier has title – where applicable, to the extent of the Supplier’s proportional ownership of the sold goods.

  3. If the goods subject to retention of title are seized by a third party, the Customer must inform the Supplier immediately and provide a photocopy of the report on assets seized.

  4. The Supplier undertakes to release the securities it holds – at the Customer’s request and subject to choice of the securities by the Supplier – to the extent that the value of the securities exceeds the claims to be secured by more than 20%.

  5. If an application is made to initiate insolvency proceedings on the Customer's assets, then the Customer’s power to resell, process, combine or mix the goods shall expire. If the goods are nonetheless resold etc. by the Customer or the (provisional) insolvency administrator, the Supplier shall have the right to the proceeds of such sale in full. Sections 170 and 171 of the Insolvency Statute (InsoO) are hereby waived. The Customer or its (provisional) insolvency administrator shall not be entitled to collect the claim assigned to the Supplier.

VIII.    Warranty/liability

  1. The Supplier shall be liable for material defects in the goods as follows:

    a)  The delivery item shall be rectified or redelivered at the Supplier’s choice if it is not usable or its usability is significantly impaired as the result of circumstances that are shown by evidence to have prevailed prior to the transfer of risk. Replaced parts shall become the Supplier's property. Warranty to the same extent as for the delivery item is given for replacement parts and re-deliveries. If rectification or re-delivery does not take place within a reasonable period with regard to the delivery options available to the Supplier, the Customer is entitled at the Supplier’s choice to reduction in price or to withdraw from the contract. Further claims by the Customer, in particular for damage caused by defects, are excluded. This does not apply in cases of intent, gross negligence or breach of essential contractual obligations by the Supplier or injury to life, limb or health. In the event of a breach of essential contractual obligations, any potential claim for damages is limited to typically foreseeable damage. Liability for greater consequential damages, in particular for lack of economic success, indirect losses and other financial losses and for losses resulting from claims by third parties is excluded. The Customer is obliged to inform the Supplier in writing prior to conclusion of contract of particular risks, atypical potential damage and unusually large potential damage.

    b)  If the purchase is a commercial transaction for both parties, the Customer must inspect the goods immediately on receipt, where feasible in the ordinary course of business, and, if a defect is identified, must notify the Supplier immediately of such defect. If the Customer fails to notify the Supplier, the goods shall be considered accepted, unless the defect is a defect that could not be identified by investigation. Sections 377 ff. of the Commercial Code (HGB) apply in all other cases.

    c)  The Supplier may refuse to rectify or re-deliver the goods while the Customer has not fulfilled its obligations.

    d)   The Supplier shall only be liable for public statements, e.g. in advertising, if the Supplier has arranged such statements and it can be shown by evidence that the Customer’s decision to purchase was based on the statement.

    e)  Warranty claims shall expire by limitation twelve months after the date of delivery.

    f)   The Supplier accepts no responsibility for damage that has been caused as a result of natural wear, incorrect or negligent handling, improper storage or improper use or by misuse, or as a result of non-compliance with our instructions for processing or use.

  2. Returns of goods, including returns that are made on the basis of a justified complaint, shall require our agreement. Otherwise, we may refuse to accept returns. Returns approved by us shall be credited at the fair value, deducting the costs of inspection, repair and repackaging and a processing fee of 20% of the net value of the goods. Products that are no longer in our current range cannot be credited or exchanged. Delivery notes and accurate information from the invoice must be enclosed with each return shipment.

IX.    Other rights of the Supplier and Customer

  1. If unforeseen circumstances within the meaning of paragraph V.3 arise and, as a consequence, the economic significance or the content of performance changes significantly, such circumstances have a significant effect on the Supplier's business or the agreed performance proves impossible after conclusion of contract, the Supplier shall be entitled to amend the contract appropriately. To the extent that amendment of the contract is not reasonable from an economic point of view, the Supplier shall be entitled to withdraw from the contract in whole or in part.

  2. The Supplier shall be entitled to withdraw from the contract if an application has been made to initiate insolvency proceedings or judicial or extrajudicial settlement proceedings on the assets of the Customer.

  3. The Customer may withdraw from the contract if the performance owed by the Supplier becomes impossible prior to transfer of risk as a consequence of a circumstance for which the Supplier is responsible.

  4. Claims for damages for impossibility are limited to damage typically foreseeable on conclusion of contract and to a maximum of ten times the net value of the goods. This shall not apply if the Supplier has brought about such impossibility intentionally or by gross negligence.

  5. The above sections 3 and 4 shall apply accordingly to cases of incapacity.

  6. Where rights and claims of the Customer are not expressly specified in these General Terms and Conditions of Delivery and Payment, they are excluded to the extent permitted by law.

X.    Transferability of rights

The Customer may transfer its rights under this contract in whole or in part to a third party only with the prior written consent of the Supplier.

XI.    Offsetting & retention

The Customer may only offset the Supplier's claims against counter-claims or exercise a right of retention, if the counter-claim is undisputed or legally established. XII.   

Data protection

The Supplier is entitled to process and save data about the Customer that it receives in the context of the commercial relationship, within the meaning of the Federal Data Protection Act.

XIII.    Place of performance & place of jurisdiction

  1. Place a performance for the Supplier's obligations is the applicable factory or the authorised workshop of the Supplier and is the Supplier's registered office for the Customer's obligations.

  2. Place of jurisdiction for all claims arising from the commercial relationship, including claims with regard to bills of exchange and cheques, is Stuttgart exclusively. However, the Supplier may also bring a claim before the court with jurisdiction at the Customer’s registered office.

XIV.    Closing provisions/severability

  1. German law excluding conflict of laws provisions and the UN Convention on the International Sale of Goods (CISG) shall apply exclusively.

  2. If any of the above provisions is or becomes void, the remaining provisions shall be unaffected thereby. If any provision is partially or wholly invalid, the parties to the contract shall immediately endeavour to achieve the economic purpose of the invalid provision by different, legally permissible means.

  3. All agreements must be made in writing. The requirement of written form shall also be met if the necessary declaration is provided in a text form in accordance with Section 126b of the Civil Code (BGB), such as fax or email. Verbal statements by the Supplier’s employees are only binding once they have been confirmed by the Supplier.  

 

Marabu GmbH & Co. KG · Asperger Straße 4 · 71732 Tamm

 

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