General Terms and Conditions - MARIAN GmbH
I. Scope of application
- All deliveries, services and offers of Marian are made exclusively on the basis of these General Conditions. The General Conditions shall apply to all current and future business relations, contracts, deliveries and other services even if these conditions are not explicit agreed upon again. Deviations from these General Terms and Conditions, particularly with regard to General Terms and Conditions of the other contracting party, shall be valid only if they have been confirmed in writing by Marian.
- These conditions shall be considered accepted at the latest when a delivery or a partial delivery or service is accepted.
II. Offer and conclusion of contract
- The offers made by Marian are without obligation, subject to the receipt of supplies by Marian from its own suppliers and manufacturers.
- The customer is entitled to cancel its order within a four (4) week period. The right to cancel an order does not apply to dealers as within the meaning of the German Commercial Code (HGB), if the acquisition and receipt of goods from Marian is a commercial act as within the meaning of Articles 343 ff. HGB. The notice of order cancellation neither has to include any explanation nor to be signed
- The period to cancel the order starts with the receipt of delivery by the customer. The cancellation deadline is deemed observed if the notice of order cancellation or the delivered goods are sent to Marian in due time. Rights of return are to be considered forfeited if the goods have been manufactured according to the order of the customer.
- The goods must be returned to Marian in orderly condition. Customers exercising their rights of refund must compensate Marian for any diminishment in value or for the complete value of the goods, to the extent the customer was not able to return the goods in orderly condition, as the customer is responsible for the ruination, perishability or other deficiency of the delivered products.
III. Prices and payments
- Marian shall be bound to the prices mentioned in its offers for 4 weeks from the date of offer. The prices specified in the order confirmation of Marian shall be authoritative. Additional deliveries and services shall be charged separately.
- All prices are subject to VAT at the rate applicable on the day of delivery ex Marian warehouse.
- Payment shall be rendered in cash or by way of check or bank remittance or credit transfer, unless expressly agreed otherwise.
- A payment shall be considered effected only when Marian can dispose of it.
- The payment conditions specified on the invoice shall be applicable.
- If execution measures are issued against the customer, the customer party defaults in payment or culpably fails to observe other significant contractual obligations or if Marian comes to know about circumstances which could significantly deteriorate the credit standing of customer, in particular cessation of payments, pendency of judicial or extrajudicial composition or insolvency proceeding, then possibly existing agreements on payment targets shall lose their validity. In such cases Marian can demand immediate performance, repudiate the contract with the other contracting party and/or demand compensation for damage instead of performance or withhold outstanding deliveries or services or perform them only against advance payment or securities.
- The other contracting party shall be entitled to offset counterclaims or exercise a right of retention only if the counterclaims are non-appealable or undisputed.
IV. Deliveries and performance period
- Dates and terms of delivery are noncommittal unless explicit agreed otherwise in writing.
- The specification of terms and dates of delivery by Marian is subject to correct and punctual receipt of supplies by Marian from its suppliers and manufacturers.
- Delays in deliveries and services due to force majeure and other unpredictable events which make it significantly difficult or impossible for Marian to perform the delivery and for which Marian is not responsible, shall entitle Marian to postpone the delivery or service by the duration of obstruction or to completely or partially withdraw from the contract - in so far as it has not been performed yet. A claim for indemnity/compensation against Marian is excluded. If there are any delivery problems, Marian shall inform the other contracting party about them without any delay.
- An indemnity/compensation claim against Marian because of non-perfomance or default is excluded unless Marian is liable because of intent or gross negligence.
V. Transfer of perils
- The delivery is made at the risk of the customer. The risk shall pass to the customer as soon as the consignment has been surrendered to the person responsible for transporting. The delivery is made to the address specified by the customer. Should the customer be a „consumer“ in the sense defined by § 13 German Civil Code [Buergerliches Gesetzbuch/BGB], the danger of accidental perishability or the accidental ruination of the purchased goods – even in the event of a „sale to destination“ - first becomes the legal responsibility of the customer after the goods have been delivered.
- The goods should be examined immediately after receipt from the forwarder. Please inform us or the transportation company immediately if detecting any transportation damages.
VI. Warranty and claim for indemnity
- Marian is obliged to provide the goods to the customer without quality defects or deficiency in title. The goods are free from quality defects if they have the quality mentioned in the corresponding technical specification of the product description and correspond to the applicable industrial standards. Any other or additional qualities and/or characteristics or a purpose which goes beyond the aforesaid have not been agreed. In particular, drawings, illustrations, measurements, weights and technical data must be regarded as approximate information and do not constitute a quality assurance unless they have been expressly specified as binding in writing.
- Warranty claims shall become statute-barred 24 months after delivery.
- The warranty period shall begin when the goods leave their place of departure.
- The warranty does not cover natural wear and tear.
- Insignificant deviations from the technical specification shall not give rise to warranty claims.
- If the operating instructions of Marian are not observed, modifications are made, parts are replaced or expendable material is used which does not correspond to the original specification, all warranty shall become void. This shall apply also if the defect is caused due to improper use, storage and handling of the products or improper interference by third parties.
- If the goods do not have the quality agreed on, the other contracting party is first entitled to claim subsequent performance. Marian shall have the right to choose between removing the defect and delivering defect free goods. If subsequent performance is associated with unreasonable expenses for Marian, then Marian shall be entitled to refuse subsequent performance. The other contracting party shall grant Marian a reasonable time for subsequent performance.
- Guarantee claims must be raised within the official guarantee period. For this purpose, the product in question should be returned to Marian with a copy of the original invoice or delivery note and a description of the products failure.
- Entitled to warranty claims against Marian is the direct contracting party only. Warranty claims are non-transferable.
- In cases of slight negligence Marian shall be liable for the damage caused by it or its vicarious agent - also in case of non-contractual liability - only if an obligation whose observance is particularly important for achieving the purpose of the contract (cardinal obligation) is not fulfilled as well as in cases of fatal injury, physical injury and health hazards.
- If there is no intention or gross negligence or if Marian is liable because of fatal injury, physical injury or health hazards, the liability for the breach of a cardinal obligation is limited to the damage which must be typically expected within the scope of this agreement.
- Contractual claims of the other contracting party against Marian shall become time-barred 12 months after delivery.
- The liability based on the product liability law (Produkthaftungsgesetz) shall not be affected by the aforesaid.
- In case of loss of data Marian shall be liable only for the amount of reconstruction expenses which would have been required if backup copies had been made.
- Marian shall not be liable for damages which can be controlled by the other contracting party or which the contracting party could have prevented by taking reasonable measures.
IX. Retention of title
- Marian shall retain the title to the contractual objects until all its claims based on the contract have been settled completely.
- The other contracting party shall be entitled to process and sell the goods which are supplied under retention of title in the ordinary course of business as long as it does not default in payment. Pledges or transfers by way of security are not permissible.
- The other contracting party hereby assigns the claims (including all balance claims from current account, claims for restitution etc.) arising due to the resale of goods supplied under retention of title or due to a different legal ground (insurance, tort etc.) related to these goods in full amount to Marian in order to provide security.
- Marian irrevocably authorizes the other contracting party to collect the claims assigned to Marian in its own name and for its own account.
- The other contracting party must inform Marian immediately if third parties have access to the goods supplied under retention of title, and point out the property of Marian to the third parties in writing.
- If the other contracting party defaults in payment or culpably fails to perform other significant contractual obligations, Marian shall be entitled to take back the goods supplied under retention of title.
- If Marian withdraws or distrains the goods supplied under retention of title, this shall not constitute a contract repudiation if the other contracting party is a merchant and Â§ 503 BGB cannot be applied.
X. Prohibition of assignation
- Claims against Marian may not be assigned to third parties without the express approval by Marian.
- Unless and to the extent unassignable claims are concerned, the approval by Marian shall be granted if the contracting party proves significant interests which outweigh the interests of Marian to sustain the prohibition of assignation.
XI. Copyright / Right of use
- Marian assures that in the contract territory, the products of Marian are free from industrial property rights of third parties which could exclude or restrict the use by the contracting party. This does not apply if the other contracting party uses a product which has not been released by Marian or uses the product after it has been modified by a party other than Marian, or if it uses the product under conditions which differ from the contractually agreed conditions of use.
- If software products of other manufacturers are surrendered, the license provisions of the manufacturer with regard to the right of use allowed by copyright, in particular with regard to limitations on the use of the software, must be observed in addition to these General Terms and Conditions.
- Marian shall be entitled to enclose advertising mail and other printed material with the products.
- Marian processes its orders with the help of automatic data processing. The contracting party hereby grants its express approval to Marian to store and process the data which becomes known in connection with contractual relationships and which is necessary for processing the order in accordance with legal regulations on privacy.
XIV. Applicable law
- The General Terms and Conditions and all privities of contract between Marian and the customer shall be governed by the law of the Federal Republic of Germany.
- If the other contracting party is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special asset under public law or is not based in the Federal Republic of Germany, Leipzig shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.
- If the contracting parties have agreed in writing on stipulations which conflict with these General Terms and Conditions, the agreed on stipulations shall be authoritative.
- Versions of these General Terms and Conditions in languages other than German must only be regarded as translations. If diversities in interpretation or language-related discrepancies between the foreign language version and the German version arise, the German version of these General Terms and Conditions shall be authoritative.