General Terms and Conditions of Sale of Marinetech Edelstahlhandel GmbH & Co. KG (hereinafter also referred to as 'Marinetech')
I. Scope of application
1. The following Terms and Conditions of Sale shall apply to all contracts concerning the delivery of goods concluded between the Customer and Marinetech. They shall also apply to all future business relationships, even if they are not expressly agreed upon again. The Customer's conflicting or deviating terms and conditions, which we do not expressly acknowledge, are non-binding for us, even if we do not expressly object to them. They shall only be binding for us if we expressly agree to them. This approval requirement applies in all cases, particularly if we unconditionally execute the Customer's purchase order with knowledge of the Customer's conflicting or deviating terms and conditions.
2. In the contracts, all agreements made between ourselves and the Customer with the aim of executing the purchase contracts up until such time that the respective contract is concluded are recorded in writing. The validity of individual agreements made at a later date on a case-by-case basis shall remain unaffected.
3. If we have concluded a framework agreement with the Customer, these General Terms and Conditions of Sale shall apply both to this framework agreement and to the individual delivery or purchase order.
II. Offer and conclusion of the contract
1. We can accept a purchase order from the Customer, which is to be qualified as a legally binding offer to conclude a purchase contract, within two weeks of us choosing to either send an order confirmation or to unconditionally carry out the ordered deliveries or services within the same period.
2. Our offers are subject to change and non-binding, unless we have expressly confirmed that they are binding. Information about our goods (particularly technical data, dimensions, performance and consumption data as well as the descriptions in the respective product information or advertising materials, etc.) are only approximate, unless the usability for the contractually intended purpose requires precise conformity; they are not guaranteed qualities, unless the guarantee is made expressly and in writing.
3. We reserve ownership, copyright and other industrial property rights for all illustrations, calculations, drawings and other documents. Irrespective of whether we have marked the aforementioned illustrations, calculations, drawings and other documents as confidential, the Customer may only disclose them to third parties, make them known, use them either themselves or through third parties or reproduce them as such or with regard to content with our written consent.
4. Information about current stock levels is always non-binding. If stock levels are communicated to the Customer, these are stocks held specifically for customer groups or sales groups and do not have to be identical to the actual stock.
III. Terms of payment
1. Our prices apply to the scope of services and deliveries specified in the order confirmations. Additional or special services shall be charged separately. Unless specified otherwise, the prices are valid ex-works, plus packaging, customs, insurance and (on a case-by-case basis) additional charges. Our prices do not include the statutory value-added tax. We shall indicate it separately on the invoice at the statutory rate applicable on the invoicing date
2. Unless agreed otherwise, invoices shall fall due for payment without any deductions within 30 days of the invoice date. If payments are made cash or cash on delivery within 10 days of the invoice date (and also if payments are made by cheque or bank transfer within the same period), we shall grant a 2% discount, provided that no older due invoices are fully or partially open. A payment shall only be deemed to have been made when the amount is at our disposal. If payments are made by cheque, they shall only be deemed to have been made when the cheque has been cashed.
3. If the Customer defaults on a payment, the statutory provisions shall apply. In the case of deliveries that no consumers are involved in, the default interest rate shall be based on the statutory provisions applicable to entrepreneurs (cf. § 288 of the German Civil Code (BGB)). We reserve the right to assert further claims.
4. The Customer shall only be entitled to rights of offsetting and/or retention, even if notices of defects or counter-claims are asserted, if the counter-claims have been legally established, have been acknowledged by us, are undisputed or arise from the same specific contractual relationship as the principal claim and are in a mutual relationship with the latter.
5. If we have allowed the Customer to pay in instalments, the remaining balance shall fall due for payment in full if the Customer is more than eight days in arrears with the payment of one instalment. The same shall apply in the event that the Customer's financial circumstances deteriorate after the contract is concluded so the Customer's solvency is called into question.
6. Price changes are permissible if there are more than four months between the conclusion of the contract and the agreed delivery date. If wages, material costs, distribution costs for deliveries or customs duties increase thereafter until delivery, or if a customs duty is introduced or costs change due to price increases made by upstream suppliers or due to exchange rate fluctuations, we shall be entitled to increase the price accordingly in line with the cost increases.
IV. Delivery and performance period, liability in the event of delayed delivery
1. Delivery dates or deadlines that have not been expressly agreed as binding or expressly promised by us as binding shall be considered to be exclusively non-binding information. They shall only be considered to be approximate and describe the expected delivery date. Any deviating agreements or promises concerning a binding delivery period must be made expressly and in writing. The delivery period we state shall only commence once all the technical issues have been clarified. If a down payment has been agreed or if documents, approvals or releases are still to be obtained by the Customer for us to render the service, the delivery period shall only commence once all the aforementioned prerequisites have been met. The Customer must also fulfil all the obligations incumbent upon them properly and in good time.
2. If, for reasons for which we are not responsible, we do not receive deliveries or services from our sub-suppliers or from sub-contractors despite proper provision, if such deliveries or services are not correct or do not reach us in time or if force majeure occurs, we shall notify our Customer of this situation in writing and in good time. In this case, we shall be entitled to postpone the delivery or service for the duration of a temporary obstacle or, in the event of a substantial obstacle that is more than just temporary, withdraw from the contract in full or in part on the grounds of the not yet performed part of the contract, provided that we have complied with our aforementioned duty to provide information and have not assumed the procurement risk or manufacturing risk. Other events that were not foreseeable when the contract was concluded, such as legal strikes or lockouts, official interventions, energy and raw material shortages, transport shortages for which we bear no blame and disruptions to operations for which we are not responsible, for instance, by fire, water, mechanical breakdowns and all other obstacles that – when considered objectively – have not been brought about through fault of our own shall be regarded as force majeure. If the delivery or service is delayed by more than one month as a result of one of the cases mentioned in sentences 1 and 3 above, notwithstanding the requirement to set a time limit for the Customer and excluding any claims for damages both we and the Customer shall be entitled to withdraw from the contract with regard to the quantity affected by the delivery disruptions. The Customer is entitled to withdraw from the entire contract if accepting a partial delivery is unreasonable to them.
3. In any case, we shall only be in default of delivery once a reasonable grace period set by the Customer has elapsed, unless it is a transaction for delivery by a fixed date within the meaning of § 286 (2) (4) of the German Civil Code or § 376 of the German Commercial Code (HGB).
4. Our statutory rights, particularly in the event of exclusion of the obligation to perform (e.g. due to performance and/or subsequent performance being impossible or unreasonable), shall remain unaffected. Claims for damages arising from delay in delivery are excluded, unless they are based on intentional or grossly negligent actions on our part or on the part of our vicarious agents or on the culpable breach of essential contractual obligations. Essential contractual obligations are those contractual obligations that protect the Customer's legal positions that are essential to the contract and that the contract has to grant the same according to its content and purpose; essential contractual obligations are also those contractual obligations whose fulfilment is essential for the proper execution of the contract and compliance with which the contractual partner regularly relies on and may rely on.The exclusion of liability does not apply to damages resulting from injury to life, limb or health or relating to guarantees.However, in the event of a simply negligent breach of an essential contractual obligation, we shall only be liable for the direct average damage that is foreseeable according to the type of contact concluded and that is typical of the contract.
5. We shall only be entitled to make partial deliveries and render partial services if
- the partial delivery or partial service can be used by the Customer in the context of the intended contractual purpose,
- the delivery of the remaining ordered goods or the provision of the remaining ordered services is ensured, and
- the Customer does not incur any significant additional expenses or costs as a result (unless we agree to bear such costs).
6. If the Customer is in default of acceptance, we shall be entitled to demand compensation for the damage incurred and any additional expenses. The same shall apply if the Customer culpably violates their obligations to cooperate.
V. Transfer of risk, dispatch
1. Unless agreed otherwise, loading and dispatch shall be carried out uninsured at the Customer's risk. The risk of accidental loss and accidental deterioration of the goods shall pass to the Customer at the latest as soon as the goods have left our factory or the delivery warehouse, even if we undertake to provide further services such as freight-free dispatch, transport or similar activities. In the event of sale by dispatch, the risk of accidental loss and accidental deterioration of the goods, as well as the risk of delay, shall pass to the forwarding agent, the carrier or other person or institution designated to carry out the dispatch when the goods are delivered to the same. It shall be equivalent to handover if the Customer is in default of acceptance.
2. We shall endeavour to take into account the Customer's requests and interests with regard to the type and route of dispatch; any additional costs incurred as a result – even if freight-free delivery was agreed – shall be borne by the Customer.
3. If dispatch is delayed at the request or fault of the Customer, we shall store the goods at the Customer's expense and risk. In this case, notification of readiness for dispatch shall be deemed equivalent to dispatch.
4. At the Customer's request and expense, we shall insure the delivery by means of transport insurance. This requires an explicit and written instruction from the Customer.
VI. Warranty/limitation of liability/compensation for futile expenses
1. The Customer's claims for defects shall only exist if the Customer has duly complied with their statutory obligations to inspect and give notice of defects, particularly in accordance with § 377 of the German Commercial Code (HGB). Irrespective of the legal requirements for proper inspection, the Customer must carefully and to a reasonable extent inspect the delivered goods – by random sampling if necessary – following delivery to them or to a third party appointed by them, at least to examine the dimensional accuracy, material, weight and surface quality. We must be notified in writing of any defects that become apparent within one week of receipt of the goods. If we are not notified within this time period, the goods shall be deemed to have been accepted. Concealed defects must be reported to us in writing immediately after they are discovered. Proper notice of defects must indicate that the Customer is prepared to return the delivery item that is the subject of a complaint carriage paid at our request. If the complaint is justified, we shall reimburse the costs of the most affordable means of dispatch; this does not apply if the costs increase because the delivery item is located in a place other than the location of intended use.
2. The Customer's rights in respect of material defects and defects in title (including incorrect and short delivery and incorrect assembly/installation or inadequate assembly/installation instructions) shall be governed by statutory provisions unless specified otherwise above or below.
3. Irrespective of the provisions set forth above and below, the statutory provisions shall apply in all cases
- where we have acted with intent;
- where damage is caused due to injury to life, limb or health;
- where claims are made according to the German Product Liability Act;
- where guarantees that we give contradict the deviating regulations.
4. The following special characteristics shall otherwise apply to the Customer's rights in the event of material defects and defects in title:
a) Liability for damages and reimbursement of futile expenses
Claims for damages due to material defects and defects in title are excluded, insofar as they are not
- due to grossly negligent action on our part or on the part of our vicarious agents, or
- due to the culpable breach of essential contractual obligations. Essential contractual obligations are those contractual obligations that protect the Customer's legal positions that are essential to the contract and that the contract has to grant the same according to its content and purpose; essential contractual obligations are also those contractual obligations whose fulfilment is essential for the proper execution of the contract and compliance with which the contractual partner regularly relies on and may rely on.
Claims for reimbursement of futile expenses according to § 284 of the German Civil Code shall be waived if and to the extent that a claim for reimbursement of the damage instead of performance has been effectively released according to the above.
b) Subsequent performance
- If the goods we delivered have already been installed in another item or attached to another item by the Customer themselves, insofar as doing so is reasonable for them and they have not undertaken the transaction as a consumer, the Customer shall give us the opportunity for the purpose of subsequent performance to remove the goods ourselves and to reinstall or reattach the repaired or re-delivered goods ourselves and to set us a reasonable deadline for this purpose. This shall apply regardless of whether we were originally obligated to install or assemble the goods in addition to the delivery; this procedure does not make the installation or assembly of the delivered goods part of subsequent performance.
- If the Customer has already resold the goods we delivered, the Customer must set us a prior and reasonable deadline for subsequent performance even if the Customer had to take back the goods from their customer as a result of the defect or the Customer's customer has reduced the purchase price.
- Our right to refuse subsequent performance under the statutory conditions remains unaffected.
c) Reimbursement of expenses for subsequent performance
- The Customer shall only be entitled to demand from us reimbursement of any expenses they incur for the dismantling and reassembly of the goods or for the removal and reattachment of the same for the purpose of subsequent performance if the reasonable deadline set by the Customer for this purpose has elapsed unsuccessfully.
- In the event that the goods we delivered had to be disassembled and reassembled or removed and reattached in the supply chain by the Customer for the purpose of subsequent performance for their direct customer or a further customer in the event of resale by the Customer, we shall not be obligated to reimburse the Customer for the expenses incurred in this respect.
- If it turns out that the Customer's request for rectification of the defect was unjustified, we shall be entitled to demand reimbursement from the Customer for the costs incurred (particularly testing, installation, removal and transport costs), unless the Customer was unable to recognise the lack of defectiveness.
The special characteristics mentioned above under lit. b) and c) do not apply to the delivery of newly manufactured goods by us that are sold to a consumer at the end of the supply chain in an unprocessed condition by an entrepreneur, even if the latter has further processed them (claims arising from § 478 of the German Civil Code – recourse of the entrepreneur). Further processing within the meaning of this provision shall be deemed to exist, particularly if the goods are incorporated into another product.
5. In the event of delivery of newly manufactured goods by us that are sold to a consumer at the end of the supply chain in an unprocessed condition by an entrepreneur, even if the latter has further processed them, the following special characteristics shall apply to the Customer's rights:
- The Customer's claims under § 478 of the German Civil Code are excluded if the defect is due to advertising statements or other contractual agreements that do not originate from us, or if the Customer, their direct customer or a further customer in the supply chain has given a special guarantee to the end consumer.
- These claims are also excluded if the Customer, their direct customer or a further customer in the supply chain itself was not obligated by law to exercise the warranty rights vis-à-vis the end consumer or did not make this complaint vis-à-vis a claim made to them. This shall also apply if the Customer, their direct customer or a further customer in the supply chain has given guarantees to the end consumer that extend beyond the statutory provisions.
- The Customer's claims under § 478 of the German Civil Code are excluded if the Customer has not properly complied with their statutory obligations to inspect the goods and give notice of defects in accordance with Section VI (1).
VII. Other liability
Claims for damages due to breach of a non-contractual obligation (liability in tort) or due to culpability during or before conclusion of the contract (culpa in contrahendo) and other legal grounds, particularly breach of general duties of consideration (§ 241 (2) of the German Civil Code) or other contractual obligations (§ 280 (1) of the German Civil Code), insofar as they are not already warranty claims, are excluded unless they are due to intentional or grossly negligent actions on our part or that of our vicarious agents or due to the culpable breach of essential contractual obligations.
The exclusion of liability does not apply to damages resulting from injury to life, limb or health or relating to guarantees, or to claims arising from the German Product Liability Act.
However, in the event of a simply negligent breach of an essential contractual obligation, we shall only be liable for the direct average damage that is foreseeable according to the type of contact concluded and that is typical of the contract.
VIII. Statute of limitations
1. Notwithstanding § 438 (1) (3) of the German Civil Code, the general limitation period for claims arising from material defects and defects in title, including claims for reimbursement of expenses in the supply chain according to § 445a (1) and (3) of the German Civil Code is one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
2. However, if the goods are a building or an object that has been used for a building according to its usual use and that has caused its defectiveness (building material), the period of limitation shall be five years from delivery according to the statutory regulation (§ 438 (1) (2) of the German Civil Code). Other statutory special regulations concerning the statute of limitations (particularly § 438 (1) (1) (3) and §§ 444 and 445b of the German Civil Code) shall also remain unaffected.
3. Notwithstanding § 445b (2), sentence 2 of the German Civil Code, the suspension of expiry with regard to the limitation of the Customer's claims for defects against us for three years after delivery of the goods shall end if the Customer resells the goods we delivered.
4. The aforementioned limitation periods set down in sales law shall also apply to the Customer's contractual and non-contractual claims for damages that are based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195 and 199 of the German Civil Code) would lead to a shorter limitation period on a case-by-case basis. Claims for damages asserted by the Customer and arising from intent, gross negligence, injury to life, limb or health and from guarantees or the German Product Liability Act shall, however, become statute-barred exclusively in accordance with the statutory limitation periods. The shortening of the limitation period or the suspension of expiry shall also not apply if it is a case of delivery of goods by us that are sold to a consumer at the end of the supply chain in an unprocessed condition by an entrepreneur (recourse of the entrepreneur – §§ 478 and 479 of the German Civil Code).
IX. Retention of title
1. Goods that we deliver shall remain our property until all existing or future claims to which we are entitled against the Customer from the specific purchase contract and/or – insofar as the Customer is a company, a legal entity under public law or a special fund under public law – from any legal reason from the current business relationship have been settled. If the Customer breaches the contract, e.g. defaults on payment, we shall have the right to take back the reserved goods after setting a reasonable deadline beforehand. If we take back the reserved goods, this shall constitute withdrawal from the contract. If we seize the reserved goods, this is withdrawal from the contract. We are entitled to utilise the reserved goods once we have taken them back. Once an appropriate amount has been deducted for the utilisation costs, the utilisation proceeds shall be offset against the amounts that the Customer owes to us.
2. The Customer shall treat the reserved goods with due care and insure them sufficiently at their replacement value against fire damage, water damage and theft at their own expense. Maintenance and inspection work that becomes necessary shall be carried out in good time by the Customer at their own expense. The Customer is also obligated, at our request, to provide us with information about the condition of the goods at any time and to inform us of where the goods are being stored.
3. The Customer is entitled to sell and/or use the reserved goods in the ordinary course of business as long as they are not in arrears. Pledging or transfer by way of security is not permitted. The Customer shall hereby already assign by way of security any arising claims pertaining to the reserved goods that result from resale or on other legal grounds (insurance, tortious act) (including any balance claims from a current account) to us in full; we shall hereby accept the assignment. We hereby revocably authorise the Customer to collect the claims assigned to us for our account in their own name. The collection authorisation may be revoked at any time if the Customer does not duly meet their payment obligations. The Customer is also not entitled to assign this claim for the purpose of collecting the claim by way of factoring, unless the obligation of the factor is simultaneously justified to effect the consideration in the amount of the claims directly to us as long as we still have claims against the Customer. The Customer is also obligated to inform us immediately of any seizure or other impairment by third parties.
4. Any processing or transformation of the reserved goods carried out by the Customer shall in any case be carried out for us. If the reserved goods are processed with other items that do not belong to us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount including value-added tax) to the other processed items at the time of processing. In the event of the reserved goods being inseparably mixed with other items that do not belong to us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount including value-added tax) to the other mixed items at the time of mixing. If, as a result of the mixing, the Customer's item is to be regarded as the main item, the Customer and ourselves agree that the Customer shall assign to us pro-rata co-ownership of this item; we hereby accept the assignment. The Customer shall hold in safe custody our sole or co-ownership of an item established in this way on our behalf. The same shall apply to the new item resulting from processing or transformation as to the reserved goods, but with the restriction that the Customer assigns to us claims asserted by third parties only to the extent that we have acquired co-ownership according to the above.
5. If third parties access the reserved goods, particularly by means of seizure, the Customer shall point out that we own the same and inform us immediately so that we can assert our ownership rights. Insofar as the third party is unable to reimburse us for the in-court or out-of-court costs that we incur in this regard, the Customer shall be liable for the same.
6. We are obligated to release our securities accruing to us to the extent that their realisable value exceeds the claims to be secured by more than 10%; the choice of the securities to be released in this context shall be at our discretion.
X. Place of performance, place of jurisdiction, applicable law
1. The place of performance and jurisdiction for deliveries and payments (including actions based on cheques and bills of exchange) as well as all disputes arising between us and the Customer from the purchase contracts concluded between us and the Customer shall be Bremen. However, we are also entitled to institute legal proceedings against the Customer at their place of residence and/or registered office.
2. The legal relationship between ourselves and our customers or between ourselves and third parties shall be governed exclusively by the law applicable in the Federal Republic of Germany to the exclusion of international uniform law, particularly the UN Convention on Contracts for the International Sale of Goods, insofar as the contracting parties have not expressly agreed to its validity.
1. Should these provisions be or become partially invalid or incomplete or be excluded by a special agreement, this shall not affect the validity of the remaining provisions.
2. We would like to point out that we store our customers' data in the context of our mutual business relationships according to the valid data protection regulations, particularly the European General Data Protection Regulation and the German Federal Data Protection Act.
28779 Bremen, Germany, December 2018
Marinetech Edelstahlhandel GmbH & Co. KG