Marushin General T&Cs
Section 1 – Scope of application, form
(1) The general terms and conditions (hereinafter ‘T&Cs’) apply to all of our business relationships with our customers (‘Buyer’). The T&Cs only apply if the Buyer is an entrepreneur within the meaning of Section 14 German Civil Code, is a legal entity under public law, or is a special fund under public law.
(2) These T&Cs particularly apply to contracts concerning the sale of and/or delivery of moveable goods (‘goods’), regardless of whether we manufacture the goods ourselves or acquire them from suppliers (Sections 433, 651 German Civil Code). The T&Cs constitute a framework agreement – also for similar future contracts – applicable in the version valid at the time the Buyer places an order or in any case, in the last written or electronic form shared, without us being required to refer you to them on a case-by-case basis; we will inform the Buyer of any changes to the T&Cs without undue delay.
(3) Our T&Cs apply exclusively. The Buyer’s deviating, contradictory or supplementary general terms and conditions shall not form an integral part of the contract unless we explicitly agree to their application. This requirement for consent shall also apply, for example, even if we make deliveries to you unconditionally with knowledge of the Buyer’s T&Cs.
(4) Individual agreements made with the Buyer on a case-by-case basis (including subsidiary agreements, supplements and amendments) take priority over these T&Cs. Subject to evidence to the contrary, a written contract or our written confirmation determines the content of such agreements.
(5) The Buyer must provide legally relevant declarations and indications concerning the contract (e.g. setting deadlines, providing notification of any defects, withdrawal or mitigation) in writing or electronically (e.g. letter, e-mail, fax). Legal formalities and other evidence, with particular reference to doubts about the authorisation of the person making declarations, shall remain unaffected.
(6) References to the validity of legal provisions are only significant for the purposes of making declarations. Therefore, legal provisions apply without such a clarification being made, provided that they are not specifically altered or expressly excluded from these T&Cs.
Section 2 – Conclusion of the contract
(1) Our offers are subject to alteration and are non-binding. This shall also apply if we have given the Buyer catalogues, technical documentation (e.g. designs, calculations, references to DIN standards), other product descriptions or documentation – also in electronic format – to which we retain title and copyrights.
(2) When the Buyer orders goods, this constitutes a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within three weeks of receipt.
(3) The offer is accepted in writing (e.g. via an order confirmation) or by delivery of the goods to the customer.
Section 3 – Delivery and delays
(1) The delivery date is agreed on an individual basis, or is specified by us when we accept the order. Otherwise, the delivery date is approximately three weeks from contract conclusion.
(2) If we are unable to meet a delivery deadline for reasons for which we are not responsible (service unavailability), we will inform the Buyer of this without undue delay, at the same time informing them of the expected new delivery date. If the service is also not available within this new delivery period, we are entitled to withdraw from the contract either in full or in part. In this case, the Buyer will be refunded for any payment already made without undue delay. Service unavailability in this sense particularly constitutes untimely delivery by our suppliers to us if we have entered into a congruent hedging transaction, where neither our suppliers nor us are at fault or we are not obligated to procurement on a case-by-case basis.
(3) Delivery deemed ‘delayed’ is determined by legal provisions. However, in each case, a reminder from the customer is required to constitute a delay. If we default on delivery, the Buyer may request a fixed compensation amount for the damage caused by the delay. The fixed compensation amount for each full calendar week of the delay is 0.5% of the net price (delivery value), capped at 5% of the delivery value for the delayed goods. We reserve the right to prove that the Buyer has not incurred any damage or has only incurred significantly less damage than the above-mentioned fixed amount.
(4) The Buyer’s rights under Section 8 of these T&Cs and our legal rights, with particular reference to the exclusion of the performance obligation (e.g. due to service unavailability or unacceptability and/or supplementary performance) remain unaffected.
Section 4 – Delivery, transfer or risk, acceptance and default on acceptance
- Delivery is made ex-warehouse, which is also the place of performance for the delivery and any supplementary performance. At the request of the Buyer and at the Buyer’s expense, goods may be sent to a different destination (delivery sale). We are entitled to determine the type of delivery ourselves (with particular reference to transport companies, delivery route, packaging), unless otherwise agreed.
- The risk of accidental loss and accidental deterioration of the goods is transferred when the goods are transferred to the Buyer at the latest. However, for delivery sales, risk of accidental loss and accidental deterioration of the goods and the risk of delay is transferred when the goods are given to the carrier, the freight forwarder or otherwise to the person or establishment chosen to make delivery. If acceptance is agreed, this shall determine the transfer of risk. The legal provisions of the German law on contracts for work and services (Werkvertragsrecht) shall also apply to the agreed acceptance accordingly. The transfer or acceptance shall be deemed to have taken place if the Buyer defaults on acceptance.
- If the Buyer defaults on acceptance, fails to cooperate, or if our delivery is delayed for other reasons for which the Buyer is responsible, we are entitled to request compensation for damages resulting from this, including any additional expenses (e.g. storage costs). We charge a fixed compensation amount in the amount of €100 per calendar day, starting with the delivery date or – if there is no delivery date – starting with notification of when the goods are ready for dispatch.
Proof of greater damages and our legal claims (with particular reference to compensation for additional expenses, suitable compensation, termination) shall remain unaffected by this; however the fixed amount must be charged for further monetary claims. The Buyer is permitted to prove that we have not incurred any damage or have incurred significantly less damage than the above-mentioned fixed amount.
Section 5 – Prices and payment terms
(1) Unless otherwise agreed on a case-by-case basis, our prices applicable at the time of concluding the contract apply ex-warehouse, plus statutory VAT.
(2) For a delivery sale (Section 4(1)), the Buyer shall bear the transport costs ex-warehouse and the costs of any transport insurance requested by the Buyer, where applicable.
If we do not charge the transport costs actually incurred on a case-by-case basis, a fixed fee for transport costs shall apply (excluding transport insurance) in the amount of €15 for deliveries within Germany, €10 per 5kg of transport weight for deliveries within the European Union, and €10 per kilogram of transport weight for deliveries outside the European Union.
Any customs duties, charges, taxes and other statutory levies shall be borne by the Buyer.
(3) The purchase price is due for payment within 30 days of invoicing and delivery or acceptance of the goods. For contracts with a delivery value of more than €5,000, we are entitled to only make the delivery in full or in part with an advance payment of 50% of the purchase price. We shall provide notification of such a reservation with the order confirmation at the latest.
(4) The Buyer is in default if the above-mentioned payment deadline is not met. Interest is charged on the purchase price for the default period at the respectively applicable statutory interest rate. We reserve the right to assert further damages caused by delay. For businessmen, our claim to commercial maturity interest (Section 353 German Commercial Code) shall remain unaffected.
(5) The Buyer is only entitled to rights of set-off or retention if its claim is legally binding or undisputed. If delivery is defective, the Buyer’s opposing rights, with particular reference to Section 7 Paragraph 6 Sentence 2 of these T&Cs, remain unaffected.
(6) If, after the contract is concluded, it becomes apparent (e.g. due to insolvency proceedings commencing) that our claim to the purchase price is compromised by defective performance by the Buyer, we are entitled to refuse the service pursuant to legal provisions and to withdraw from the contract (Section 321 German Civil Code), possibly also after setting a deadline. We may declare withdrawal from contracts concerning the manufacture of unacceptable items (customised products) with immediate effect; the statutory regulations concerning the superfluousness of the deadline remain unaffected.
Section 6 – Retention of title
(1) We retain title to the goods sold until all of our current and future receivables from the purchase agreement and the ongoing business relationship (secured receivables) have been paid.
(2) Goods to which title is retained may not be pledged to third parties nor assigned for security before full payment is made for secured receivables. The Buyer must inform us in writing without undue delay if an application has been made for insolvency proceedings to commence or if third parties have access to goods belonging to us (e.g. seizure).
(3) If the Buyer behaves in a way that does not comply with the contract, with particular reference to non-payment of the purchase price due, we are entitled to withdraw from the contract in accordance with the legal provisions and/or demand that the goods are returned based on the retention of title. The demand does not also represent a declaration of withdrawal; we are further entitled to solely demand the goods and reserve the right to withdrawal. If the Buyer does not pay the purchase price due, we may only assert these rights if we have previously set the Buyer a reasonable deadline for payment and this has not been met, or such a deadline is superfluous pursuant to legal provisions.
(4) Under (c) below, the Buyer is authorised to resell goods subject to the retention of title as part of its ordinary course of business. In this case, the following provisions shall also apply.
(a) The Buyer shall assign the receivables from third parties relating to the onward sale of the goods to us for security. We shall accept the assignment. The Buyer’s obligations outlined in Paragraph 2 shall also apply with respect to the assigned receivables.
(b) In addition to us, the Buyer shall remain authorised to collect receivables. We shall not collect receivables provided the Buyer meets its payment obligations to us, the performance is not defective, and we do not assert the retention of title by exercising a right under Paragraph 3. However, if this is the case, we may demand that the Buyer notifies us of the assigned receivables and the respective debtors, provides all of the information required for collection, provides all of the related documentation and notifies the debtors (third parties) of the assignment. In this case, we are also entitled to revoke the Buyer’s authorisation to resell the goods subject to the retention of title.
(c) If the realisable value of the securities exceeds our receivables by more than 10%, at our discretion we will release securities at the Buyer’s request.
Section 7 – Buyer claims for defects
(1) For Buyer rights concerning material defects and defects of title (including incorrect deliveries, shortfalls with deliveries and improper assembly and inadequate assembly instructions), legal provisions apply, unless otherwise specified in the following. Special statutory regulations for final delivery of the goods to the consumer shall remain unaffected in all cases (supplier recourse in accordance with Sections 478, 479 German Civil Code).
(2) Our liability for defects is mainly based on the agreement concerning the condition of the goods. All product descriptions that are the object of the individual contract or have been made publicly available by us (with particular reference to catalogues or on our homepage) shall be deemed agreements relating to the condition of the goods.
(3) If the condition has not been agreed, the legal provisions shall be used to determined whether there is a defect (Section 434 Paragraph 1 Sentences 2 and 3 German Civil Code). We assume no liability for public statements made by the manufacturer or other third parties (e.g. advertising).
(4) The Buyer’s claims for defects require the Buyer’s legal inspection obligation and requirement to give notice of defects (Sections 377, 381 German Commercial Code) to be met. If a defect is found upon delivery, inspection or at another later point in time, we must be informed of this in writing without undue delay. In any case, notification must be given in writing within 5 working days of delivery for obvious defects and within 5 working days of discovery for defects not visible. If the Buyer fails to carry out a proper inspection and/or fails to give notification of the defect, our liability for the defect for which no notification is given or for which notification is given late or notification is not properly given, is excluded under the legal provisions.
(5) If the delivered item is defective, we may initially choose to carry out supplementary performance by remedying the defect (repair) or by delivering a non-defective item (replacement delivery). Our right to refuse supplementary performance under the legal conditions shall remain unaffected.
(6) We are entitled to make the supplementary performance owed dependent on the Buyer paying the purchase price due. However, the Buyer is entitled to withhold a part of the purchase price that corresponds to extent of the defect.
(7) The Buyer must give us the time and opportunity required for supplementary performance owed, with particular reference to providing the disputed goods for inspection purposes. For replacement deliveries, the Buyer must return the defective items to us in accordance with the legal provisions.
(8) The expenses required for the purposes of inspection and supplementary performance, with particular reference to transportation, road, labour and materials costs, shall be borne by us if there is in fact a defect. Otherwise, we may request that the Buyer reimburses costs incurred by us in connection with the unauthorised request to remedy the defect (with particular reference to inspection and transportation costs), unless the lack of defect was not apparent to the Buyer.
(9) In urgent cases, e.g. if operational safety is compromised or in order to prevent excessive damage, the Buyer has the right to remedy the defect itself and request a refund for the expenses objectively required for this. We must be informed of such self-performance immediately, and in advance where possible. There is no right to self-performance if we would be entitled to refuse corresponding supplementary performance under the legal provisions.
(10) If supplementary performance fails or if a reasonable deadline for supplementary performance to be set by the Buyer is not met, or is superfluous in line with legal provisions, the Buyer may withdraw from the purchase agreement, or reduce the purchase price. However, there is no right of withdrawal for immaterial defects.
(11) Buyer claims for compensation for damages and/or compensation for wasted expenditure shall only apply to defects as well in accordance with Section 8, and shall otherwise be excluded.
Section 8 – Other Liability
(1) We are liable for breaches of contractual and non-contractual duties under the relevant legal provisions, unless otherwise regulated in these T&Cs, including the following provisions.
(2) Irrespective of the legal grounds, we are liable for compensation for damages for intent and gross negligence, within the context of liability in tort. In cases of simple negligence, we shall be liable subject to a milder degree of liability under the legal provisions (e.g. for diligence in a matter)
- a) for damages resulting from injury to life, limb or health,
- b) for damages resulting from the not insignificant breach of a material contractual duty (where proper execution of the agreement is only possible if such an obligation is fulfilled and the contracting partner may reasonably expect to rely on compliance with such an obligation); though in this case, our liability is limited to compensation for foreseeable, typically occurring damages.
(3) Limitation of liability resulting from Paragraph 2 shall also apply to breaches of duty by, or for the benefit of, persons for whose fault we are responsible under the legal provisions. They shall not apply if we have fraudulently concealed a defect or assumed a guarantee for the condition of the goods and for Buyer claims under product liability law.
(4) The Buyer is only entitled to withdrawal or termination due to a breach of duty that does not relate to a defect if we are responsible for the breach of duty. A free right of termination of the Buyer (with particular reference to that under Sections 651, 649 German Civil Code) is excluded. Legal conditions and legal consequences apply otherwise.
Section 9 – Statute of limitation
(1) Contrary to Section 438 Paragraph 1 No. 3 German Civil Code, the general limitation period for claims relating to material defects and defects of title shall be one year from delivery. If acceptance is agreed, the statute of limitation starts upon acceptance.
(2) The above-mentioned statute of limitation for the purchasing right shall also apply to the Buyer’s contractual and non-contractual compensation claims for damages that are based on a defect, unless the application of the standard legal statute of limitation (Sections 195, 199 German Civil Code) would lead to a shorter statute of limitation period in particular cases. However, the Buyer’s claims for compensation for damages pursuant to Section 8 Paragraph 2 Sentences 1 and 2(a) and in accordance with product liability law only lapse based on the legal statutes of limitation.
Section 10 – Applicable law and place of jurisdiction
(1) The law of the Federal Republic of Germany shall apply to these T&Cs and the contractual relationship between us and the Buyer, with the exclusion of international uniform law, with particular reference to the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(2) If the Buyer is an entrepreneur within the meaning of German Commercial Law, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction – even on an international level – for all disputes that arise from the contractual relationship either directly or indirectly shall be our registered office in 25462 Rellingen. The same shall apply if the Buyer is an entrepreneur within the meaning of Section 14 German Civil Code. However, we are also entitled in all cases to take legal action in the place of performance for the delivery obligation in accordance with these T&Cs or an overriding individual agreement, or at the Buyer’s general place of jurisdiction. Overriding legal provisions, with particular reference to exclusive jurisdictions, shall remain unaffected.
September, 6th, 2018