Conditions of Purchase
General Terms and Conditions of Purchase of Marimex
1. General Provisions
1.1 The following General Terms and Conditions of Purchase (GTCP) shall apply to all present and future deliveries and services which the Supplier makes to/renders for Marimex, hereinafter referred to as “Marimex”. The GTCP shall only apply if the Supplier is an entrepreneur (§ 14 BGB - German Civil Code), a legal entity under public law or a special fund under public law.
1.2 With the first delivery on the basis of the present GTCP the Supplier acknowledges the conditions – in their respective current version – also with respect to any further contractual relationships. The present GTCP shall apply exclusively. Any deviating, conflicting or supplementary terms of sale or business terms of the Supplier shall only apply if Marimex has expressly agreed thereto. This approval requirement shall apply in any case, in particular also if Marimex, being aware of the terms of purchase or business terms of the Supplier, accepts the delivery without reservation.
1.3 Individual agreements made with the Supplier (e.g. framework agreements) shall in any case take precedence over the present GTCP. Inasmuch as no special regulations have been agreed upon in said individual agreements, they shall be complemented by the present GTCP. Regarding the content of any such agreement, a written contract or a written confirmation of Marimex shall be decisive.
2. Offer and Conclusion of Contract
2.1 Orders made by Marimex in text form only shall be valid. Only the content of the order laid down in text form shall count. The Supplier shall accept the order in text form within 14 days from the date on which the order was made. After expiration of this time limit, Marimex is entitled to revoke the order(s). Any claims of the Supplier based on a valid revocation are excluded.
2.2 Even after conclusion of the contract, Marimex shall be entitled to demand amendments to the delivery items if said amendments are reasonable for the Supplier.
2.3 The Supplier may only place sub-orders with the consent of Marimex.
3. Prices and Terms of Payment
3.1 Agreed prices are fixed prices and include the entire costs for packaging, for the delivery free domicile to the indicated place of receipt or place of use, for customs clearance and customs duties and for the respectively valid VAT as well as other fees. If no prices are indicated in the order, the prices demanded by the Supplier shall be submitted in advance to Marimex for approval.
3.2 Invoices shall be forwarded in duplicate, containing all related data and turnover tax statement as well as the order number of Marimex. The Supplier shall be responsible for all consequences arising due a non- compliance with this obligation, unless the Supplier can submit proof that he is not responsible for this.
3.3 Inasmuch as nothing else has been agreed upon in writing, Marimex shall pay the purchase price within 14 days, calculated from the delivery and receipt of the invoice, with a discount of 3%, or within 60 days from the date of receipt of the invoice net. In the case of acceptance of early deliveries, the due date shall be defined by the originally agreed delivery date.
3.4 Marimex shall be entitled to the full range of set-off and retention rights as provided for by law.
4. Periods of Delivery, Shipment and Transfer of Risks
4.1 The agreed delivery dates and periods are binding. The relevant date is the date of receipt of the goods at Marimex or at the agreed place of performance which, in the case of doubt, is to be determined by Marimex
4.2 The Supplier is obligated to immediately inform Marimex in writing if any circumstances occur or become evident which indicate that agreed delivery dates may not be complied with.
4.3 In the event of a delay in delivery, Marimex shall be entitled to the statutory claims. If the Supplier fails to observe delivery dates and periods for reasons that are within his sphere of risk, Marimex shall – after having given a notice of default or having granted an additional respite – be entitled to withdraw from the contract and/or to claim damages.
4.4 If the Supplier fails to observe delivery dates and periods for reasons that are beyond his control, the Supplier shall provide Marimex with respective proof. In this case the contractual partners shall make good faith efforts to adapt the contract in accordance with the changed conditions.
4.5 Partial deliveries shall only be acceptable after this has explicitly been agreed upon in writing.
4.6 Delivery has to be made free domicile and is at the Supplier’s risk up to the time of completed delivery at the contractually agreed place of receipt or place of use.
4.7 The Supplier is obligated to indicate the order number of Marimex on all shipping documents and delivery notes; in case he fails to do so, Marimex shall not be responsible for any delays in processing which may arise due to this failure.
4.8 The Supplier shall pack the goods to be delivered in a way so that any transport damages will be prevented.
4.9 The Supplier shall insure the goods at his own cost against loss and transport damages; upon request, the Supplier shall provide Marimex with respective proof regarding said insurance.
5. Retention of Title
5.1 To the extent that Marimex provides the Supplier with any parts, Marimex reserves the title to said parts. Any processing or alteration by the Supplier is conducted on behalf of Marimex. If the goods subject to retention that are owned by Marimex are processed with other goods that do not belong to Marimex, Marimex will acquire the co-ownership to the new item in the same proportion as the value of Marimex’ item to the other items at the time of processing.
5.2 If the item provided by Marimex is inseparably mixed with other items that do not belong to Marimex, Marimex will acquire the co-ownership to the new item in the same proportion as the value of Marimex’ item that is subject to retention to the other mixed items at the time of mixing. If the items are mixed in a way so that the Supplier’s item is to be deemed the principle item, it shall be agreed that the Supplier will assign a partial co- ownership to Marimex. The Supplier shall preserve the sole ownership or co-ownership for Marimex.
6. Inspection of Defects – Liability for Defects
6.1 Marimex shall inspect the delivered products in accordance with the provision stipulated in § 377 HGB (German Commercial Code) regarding the duty of examination and notice of a defect, namely within a period of 2 weeks from the delivery of the goods. If the functionality and freedom of defects of the delivered product can only be determined with a reasonable effort at the time of assembly or start-up and/or at the time of acceptance of the finished product, the inspection may be conducted later at one of the mentioned occasions.
6.2 Any discovered defects shall be reported by Marimex to the Supplier within a period of 2 weeks of receipt of the goods or, in the case of hidden defects, within 2 weeks of their detection, whereby the timely dispatch of the report shall be sufficient to be within the time limit.
6.3 The Supplier waives the claim of late inspection and/or notification of defects if Marimex has complied with the obligations stipulated in the above par. 6.1 to 6.2.
6.4 Marimex shall be entitled to the full statutory claims based on defects. If the delivered product is defective, Marimex may in any case choose whether it wishes a supplementary performance by either correcting the defect (remedy) or by providing of a defect-free product (replacement delivery) by the Supplier. Entitlement to damages, in particular the right to damages instead of performance, shall exclusively be reserved.
6.5 Marimex shall be entitled to rectify the defects itself at the cost of the Supplier if the Supplier is in default regarding the rectification of the defects.
6.6 The expenses with respect to the examination and supplementary performance, in particular costs for transport, travel, workmanship and material (also: disassembly and assembly costs) shall be borne by the Supplier, provided that a defect does indeed exist. If, however, the demand of Marimex for rectification of a defect turns out to be unfounded, the Supplier may request Marimex to reimburse the costs incurred in this respect.
6.7 If the subsequent performance has failed or if a reasonable time limit set by Marimex for the supplementary performance has expired unsuccessfully or if such time limit is dispensable according to the statutory regulations, Marimex 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.
6.8 Any claims by Marimex based on defects in the delivered goods shall fall under the statute of limitations within two years, calculated as from the transfer of risks, unless the mandatory provisions of §§ 478, 479 BGB (German Civil Code) apply.
7. Product Liability / Indemnity / Liability Insurance Cover
7.1 If the Supplier is responsible for a product damage, he shall be obligated to indemnify Marimex at its first request from any third party claims for damages to the extent that the cause of the defect lies within his sphere of control and organization and he would be liable externally himself.
7.2 Within the scope of his liability for cases of damage according to 7.1, the Supplier shall also be obligated to reimburse any possible expenses pursuant to §§ 683, 670 BGB (German Civil Code) or §§ 830, 840, 426 BGB (German Civil Code) which arise from or in connection with a recall campaign conducted by Marimex. To the extent that it is possible and reasonable, Marimex shall inform the Supplier about the content and scope of the recall campaign to be conducted and give him the opportunity to comment on this. Any other statutory claims shall remain unaffected.
7.3 The Supplier undertakes to take out a product liability insurance with a lump sum coverage of 10 million € for each case of bodily injury / physical loss; in case Marimex is entitled to any further claims for damages, those claims shall remain unaffected.
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. Industrial Porperty Rights
8.1 The Supplier warrants that no third party rights are infringed in connection with his delivery.
8.2 In case a third party asserts a claim against Marimex based on an infringement of industrial property rights, the Supplier shall be obligated to indemnify Marimex upon first request from said claims.
8.3 The Supplier‘s obligation to indemnify refers to all expenses which are necessarily incurred by Marimex from or in connection with the third party claim, unless the Supplier provides evidence showing that he is not responsible for the obligation violation on which the infringement of industrial property rights is based.
8.4 The period of limitation concerning these claims is two years, starting on the date of transfer of risks.
8.5 Marimex retains the ownership rights and copyrights to all drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and resources that were made available by Marimex. Without the express written consent of Marimex, the Supplier 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 Marimex, the Supplier shall return these objects to Marimex in their entirety and, where applicable, shall destroy any copies made thereof if they are no longer needed by the Supplier in the proper course of business. They shall be kept secret from third parties. This obligation of secrecy shall continue to apply even after completion of the present contract; it will expire if and when the manufacturing know-how which is contained in the provided drawings, illustrations, calculations and other documents has become known to the general public.
9. Old Equipment and Transport Packaging
The Supplier shall take back old equipment and transport packaging at his own costs unless Marimex waives this right to return.
10. Place of Performance, Place of Jurisdiction and Applicable Law
10.1 The place of performance shall be the official business location of Marimex.
10.2 The place of jurisdiction shall be Bottrop, Germany. Marimex shall also be entitled to sue the supplier at his place of business.
10.3 All legal relations between Marimex 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 present GTCP 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 GTCP if they ha been aware of the omission.
Marimex takes note of the fact that the Supplier will store data from the contractual relationship in accordance with § 28 Bundesdatenschutzgesetz (Federal Data Protection Act) for the purpose of data processing and that the Supplier reserves the right to transmit the data to third parties (e.g. insurance companies), inasmuch as this is necessary for the fulfilment of the contract.
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