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General Terms of Delivery and Service of Marimex

1. General Provisions

1.1  The following General Terms of Delivery and Service (GTDS) shall apply to all present and future deliveries made and services rendered by Marimex, hereinafter referred to as “Supplier”. The GTDS shall only apply if the customer is an entrepreneur (§ 14 German Civil Code - BGB), a legal entity under public law or a special fund under public law.

1.2  The present GTDS shall apply exclusively. Any deviating, conflicting or supplementary terms of purchase or business terms of the customer shall only apply if the Supplier has expressly agreed thereto. This approval requirement shall apply in any case, in particular also if the Supplier, being aware of the terms of purchase or business terms of the customer, carries out the delivery to the customer without reservation.

1.3  Individual agreements made with the customer shall in any case take precedence over the present GTDS. Regarding the content of any such agreement, a written contract or a written confirmation by the Supplier shall be decisive.
 

2. Offer and Conclusion of Contract

2.1 All offers are subject to change and non-binding. This shall also apply in case the Supplier has provided the customer with catalogues, technical documentation (e.g. drawings, plans, references to DIN standards and other standards), other product descriptions or documents

2.2 The order placed by the customer shall be deemed a binding offer to contract. Unless otherwise stated in the order, the Supplier can accept orders within 14 days. Acceptance may be declared either in writing or by delivery of the goods to the customer.

2.3 Information provided by the Supplier regarding the object of the delivery or service (e.g. weight, dimensions, practical value, capacity, tolerances and technical data) as well as representations thereof (e.g. drawings and illustrations) is only indicative, unless the purpose contractually envisaged requires precise conformity with the provided information. The information is no warranty, but indicative descriptions or identifications of the good or service. Deviations that are customary in trade and deviations which are required by law or which display technical improvements as well as the replacement of components by equivalent parts are admissible as long as they do not impair the usability for the contractually stipulated purpose.

 

3. Prices and Terms of Payment

3.1  The prices are quoted in EUR ex works, excluding packaging and other shipping costs, insurances, statutory VAT, in the case of export deliveries also excluding customs as well as fees and other public charges.

3.2  If, after conclusion of the contract, there is a considerable change in the actual costs which was not foreseeable for the Supplier and could not be influenced by him, the Supplier reserves the right to agree on a price with the customer which deviates from the price stipulated in the order confirmation. The new price will be calculated in accordance with the change in actual costs.

3.3  Invoices are to be settled within 30 days without any deduction. The relevant date of payment is the date on which the payment is received by the Supplier. Cheques and bills of exchange are only accepted by the Supplier on account of payment.

3.4  Should the payment deadline be exceeded, the Supplier will, without any further notice, charge default interest from the due date at a rate of 8 % p. a. above the respective base rate, however, at least 10 % p. a.

3.5  The customer shall only have rights to set-off and retention if his claim is uncontested or has been established as final and absolute. According to the present GTDS, in case of defects of the delivery the customer’s rights shall remain unaffected.

3.6  The Supplier is entitled to make deliveries or provide services only on condition of prior payment or deposit if, after conclusion of the contract, circumstances become known to him which are of a nature to considerably reduce the customer’s creditworthiness and on account of which the customer’s payment of the Supplier’s outstanding demands from the relevant contractual relationship (including those from other individual orders for which the same framework contract is applicable) is put at risk.
 

4. Periods of Delivery, Shipment and Transfer of Risks

4.1 Terms and deadlines announced by the Supplier with respect to deliveries and services are always only approximate unless a fixed term or a fixed deadline is expressly accepted or agreed. If shipping has been agreed, delivery deadlines and delivery dates refer to the time of transfer of the goods to the forwarding agent, the carrier or to another party entrusted with the transport of the goods.

4.2 The period for delivery begins with the dispatch of the order confirmation, yet not before clarification of all technical details and receipt of the documents and authorisations that are to be provided by the customer.

4.3 The Supplier is authorised to demand from the customer an extension of delivery and service deadlines or a suspension of delivery and service dates by the period of time for which the customer fails to meet his contractual obligations towards the Supplier.

4.4 If, at the request of the customer, the Supplier makes any changes within the delivery period, said delivery period will be extended by the time period that was necessary for the implementation of the new specifications.

4.5 The default of delay in delivery on the part of the Supplier shall be deter mined by the statutory provisions. In any case, a reminder sent by the customer will be necessary. If the Supplier is in default of delivery, the customer may demand lump-sum compensation of the default damage suffered. The lump-sum compensation shall be 0.5 % of the net price (delivery value) per complete calendar week’s default, however not exceeding a maximum amount of 5 % of the delivery value of the goods that were delivered late. The Supplier shall be entitled to provide proof that the customer has not suffered any damage at all or that the customer has suffered considerably less damage than the afore-mentioned lump-sum.

4.6 The risk of an incidental loss and an incidental deterioration of the goods shall be passed to the customer at the moment the goods are handed over. However, in the case of contracts of sale which involve the carriage of goods, the risk of an incidental loss and an incidental deterioration of the goods as well as the risk of delay shall be passed already at the moment in which the goods are handed over to the forwarding agent, the carrier or to another person or entity entrusted with the transport of the goods. The afore-mentioned shall also apply if the customer is in default of acceptance.

4.7 If no fixed dates for acceptance have been agreed upon, the customer is obligated to accept the delivery item within 8 days of notification of their completion.

4.8 If the customer does not accept the delivery item within the agreed period of time, the customer shall be obligated to pay the purchase price. Notwithstanding the legal rights, the Supplier shall be entitled to place the delivery item in storage at the risk and expense of the customer or to otherwise dispose thereof and to deliver the goods to the customer at the next possible date. In case the delivery item is placed in storage, 0.5 % of the invoiced amount shall be charged for each commenced month of storage.

4.9 The Supplier shall be entitled to grant an appropriate grace period; if this grace period lapses unsuccessfully, the Supplier shall be entitled to withdraw from the contract or to claim damages.

4.10 Delivery shall be made ex works and, unless otherwise agreed, the Supplier shall decide on the mode and route of dispatch. The Supplier shall only take out a transportation damage insurance, a theft insurance or another type of insurance at the special request and at the expense of the customer.

 

5. Retention of Title

5.1 The Supplier retains the title to the sold goods until the full payment of all of his current and future claims emerging from the contract and from a current business relationship (secured claims).

5.2 Before the full payment of the secured claims has been effected, the goods that are subject to a retention of title may neither be pledged to third parties nor assigned as a collateral. The customer shall immediately inform the Supplier in writing if and when any third parties have access to the goods owned by the Supplier.

5.3 If the customer is in breach of contract, in particular in the event of non- payment of the purchase price due, the Supplier shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand that the goods be returned on the basis of retention of title. Any demand for return of the goods shall not simultaneously be deemed to be a declaration of withdrawal. Instead, the Supplier shall be entitled to only demand the return of the goods and to reserve the right to withdraw from the contract. In case the customer does not pay the purchase price due, the Supplier may only assert these rights if he has at first unsuccessfully set the customer a reasonable time limit for payment or if the setting of such a time limit is dispensable according to the statutory provisions.

5.4 If the goods are processed, combined or mixed with goods other than those of the Supplier, the Supplier shall acquire co-ownership in the same proportion as the value of his goods to the value of the other goods used by the customer at the time of processing, combining or mixing.

5.5 The customer shall only be entitled to further sell the conditional goods in the ordinary course of business. For reasons of security, the customer shall already now assign all of his claims from the resale of the conditional goods to the Supplier. The Supplier shall accept the assignment.

5.6 The customer shall be entitled to collect the claims assigned to the Supplier himself. This shall not apply in case the customer is in default of payment, if an application has been filed to open insolvency proceedings on his assets or if he discontinues his payments. In this case, the customer may not continue to process the goods.

5.7 In the cases described in Par. 5.6 above, the customer must enable the Supplier to take back the conditional goods, disclose the assigned claims and the respective debtors, notify its purchasers of the claim assignments and provide the Supplier with all information and documents necessary for the collection of the claims.

5.8 In case the value of securities exceeds the outstanding claims by more than 10 %, the Supplier shall, on request, release securities at the Supplier’s option.

 

6. Warranty

6.1 As regards the rights of the customer in the case of material and legal defects (including wrong and short delivery as well as incorrect assembly or inadequate assembly instructions), the statutory provisions shall apply unless agreed otherwise in the following.

6.2 The primary basis regarding the liability for defects shall be the agreement made with respect to the quality of the goods. Agreements as to the quality of the goods include any product descriptions so designated which were handed over to the customer prior to his placing of an order or which were included in the contract.

6.3 In the absence of any agreed specification of the goods, the existence of defects therein shall be determined in accordance with statutory provisions (§ 434 Sec. 1 p. 2 and 3 German Civil Code - BGB).

6.4 Claims for defects asserted by the customer are conditional to the customer having fulfilled his legal examination and notification duties (§§ 377, 381 German Commercial Code - HGB). In case a defect is revealed during the process of examination or later, the Supplier must immediately be notified accordingly in writing. The notification is deemed to be immediate if it is made within two weeks, whereby the timely dispatch of the notification shall be sufficient to meet the deadline. Irrespective of this examination and notification duty, the customer shall report any obvious defects (including wrong and short delivery) in writing within two weeks from the delivery date, whereby here, too, the timely dispatch of the notification shall be sufficient to meet the deadline. If the customer fails to carry out a proper examination and/or to provide a notification of defects, a liability of the Supplier with respect to the non-disclosed defect shall be excluded.

6.5 In case the delivered item is defective, the Supplier may at first choose whether to provide supplementary performance by either correcting the defect (remedy) or by providing a defect-free item (replacement delivery). The right of the Supplier to refuse the supplementary performance in accordance with the statutory provisions shall remain unaffected.

6.6 The Supplier shall be entitled to make the owed supplementary performance dependent on the fact that the customer pays the purchase price due. The customer, however, is entitled to retain a part of the purchase price which is appropriate in relation to the defect.

6.7  The customer shall grant the Supplier the time and opportunity necessary for the owed supplementary performance and shall in particular hand over the rejected goods for the purpose of examination. In the case of a replacement delivery, the customer shall return to the Supplier the defective item in accordance with the statutory provisions. The supplementary performance shall neither contain the disassembly of the defective item nor its re-assembly if the Supplier originally was not obligated to conduct such assembly.

6.8  The expenses incurred with respect to the examination and supplementary performance, in particular transportation costs, travel costs, labour costs and material costs (not: disassembly and assembly costs) shall be borne by the Supplier, provided that a defect does indeed exist. If, however, the customer’s demand for rectification of a defect turns out to be unfounded, the Supplier may request the customer to reimburse the costs incurred in this respect.

6.9  In urgent cases, the customer shall be entitled to rectify the defect himself and to demand compensation from the Supplier with regard to the expenses objectively needed for said rectification. Prior to such a customer’s own remedy of a defect, the Supplier shall immediately and, if possible, beforehand be notified accordingly. The customer’s right to rectify the defect himself shall not apply if the Supplier would have been entitled to refuse a respective supplementary performance in accordance with statutory provisions.

6.10  If the supplementary performance has failed or if a reasonable time limit set by the customer for the supplementary performance has expired unsuccessfully or if such a time limit is dispensable according to the statutory provisions, the customer may withdraw from the contract or reduce the price. However, in the case of an insignificant defect there exists no right to withdraw from the contract.

6.11  Other or further claims by the customer based on defects, including claims for damages, also with respect to consequential harms caused by a defect as well as compensations for futile expenses are excluded.

6.12  Claims by the customer based on defects of the delivered goods shall become time-barred within 2 years after the passing of risk, irrespective of the date of initial operation.

6.13  Any claims by the customer for damages or compensation for futile expenses shall only exist in accordance with Par. 7 of the present GTDS and are otherwise excluded.

 

7. Other Liability

7.1  Unless otherwise stated in the present GTDS including the following provisions, the Supplier shall be liable in accordance with the relevant statutory provisions in the case of a breach of contractual and non- contractual obligations.

7.2  The Supplier shall be liable to pay damages – irrespective of the legal basis – in cases of wilful intent and gross negligence.

7.3  In cases of simple negligence, the Supplier shall only be liable for damages resulting from injury to life, body or health as well as for damages resulting from a violation of a material contractual obligation (an obligation which enables the proper implementation of the contract and on the compliance with which the contractual partner regularly relies and may rely). In this case, however, the Supplier’s liability shall be limited to the compensation for the foreseeable, typically occurring damage.

7.4  The limitations of liability described in Par. 7.3 above shall not apply if and when the Supplier has fraudulently concealed a defect or has given a guarantee for the quality of the goods. Any claims according to the Product Liability Act shall remain unaffected.

7.5  With the exception of claims arising from the liability for defects, claims according to the Product Liability Act or claims resulting from injury to life, body or health as well as resulting from a willful or grossly negligent violation of obligations, claims for damages will expire one year after the customer has taken or should, without gross negligence, have taken notice of the damage and of his obligation to pay damages. Apart from that, the statutory periods of limitation shall apply.

7.6  To the extent that the Supplier provides technical information or acts as an advisor and this information or advisory service does not form a part of the contractually agreed scope of services that are to be provided by the Supplier, this shall be done free of charge and with the exclusion of any liability.

 

8. Copyright

The Supplier retains the ownership or copyright for all offers and cost estimates issued by him as well as for all drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and resources that were made available to the customer. Without the express consent of the Supplier, the customer may not make these objects – neither in form nor content – available or known to third parties, use or reproduce them or have them used or reproduced by third parties. On request of the Supplier, the customer shall return these objects to the Supplier in their entirety and, where applicable, shall destroy any copies made thereof if they are no longer needed by him in the proper course of business or if negotiations do not result in the conclusion of a contract.

 

9. Old Equipment and Transport Packaging

The Supplier shall take back old equipment and transport packaging at the customer’s expenses, unless the customer waives this right to return. When returning transport packaging and old equipment, it must be free of foreign substances and sorted according to the different types; otherwise, the customer shall bear the additional costs incurred.

 

10. Place of Performance, Place of Jurisdiction and Applicable Law

10.1 The place of performance shall be the official business location of the Supplier.

10.2 The place of jurisdiction shall be Bottrop, Germany. The Supplier shall also be entitled to sue the customer at his place of business.

10.3 All legal relations between the customer and the Supplier shall be governed by German law as applicable for legal relations between domestic contractual partners. The United Nations Convention on Contracts for the International Sale of Goods (CISG) of April 11, 1980 shall be excluded.

10.4 In case the contract or the present GTDS contain any omissions, a legally valid provision is presumed to be agreed upon which comes closest to what the contractual partners would have agreed upon with respect to the economic objectives of this contract and with respect to the purpose of the GTDS if they had been aware of the omission.