General Terms & Conditions of Sale, Delivery, and Payment (GT&C SDP) - effective 01 May 2018
Our Terms & Conditions of Delivery and Payment shall apply, in the respective latest version, to all on-going and future orders by domestic or international ordering parties unless we have acknowledged deviations expressly and in writing. Ancillary agreements and later modifications shall be binding for us only after our written confirmation. Acceptance of our deliveries and services shall constitute acceptance of our Terms & Conditions of Delivery and Payment. Conflicting confirmations of the buyer / ordering party pointing out its Terms & Conditions and/or Terms & Conditions of Procurement are herewith explicitly rejected and we do not accept them unless we have consented to their applicability in writing. We shall be authorised to process – within the meaning of the German Federal Data Protection Act (BDSG) – the data of the ordering party that is related to the business relationship with the latter.
To the extent that declarations in accordance with these Terms & Conditions must be made in writing, this requirement shall also be satisfied by the text form in accordance with § 126b German Civil Code (BGB).
Our Terms & Conditions (GT&C SDP) shall also apply to all future transactions with our contractual partners, even if they are not agreed upon separately once again.
II. Offers, Contracts and Returns
Our offers shall always be non-binding and subject to change unless we have explicitly designated them as binding. The delivery contract shall be concluded only via our written order confirmation or, if the latter is provided only jointly with the invoice, by carrying out the delivery or service. Without prior agreement, returns of goods of any type will not be accepted. Drawings, depictions, measurements, weights or other performance data shall be binding only if this was expressly agreed upon in writing. Verbal agreements, even in the context of executing the contract, shall be valid only if they have been confirmed by us in writing.
If the order is to be qualified as an offer in accordance with § 145 German Federal Civil Code (BGB), we shall have the right to accept it within 2 weeks.
All prices quoted exclude turnover tax. The turnover tax applicable at the point in time of delivery will be billed separately. Any and all prices shall be ex works and shall not include packaging, freight, postage, and insurance. The packaging will be billed at cost. It will be carried out with the utmost diligence. We shall not be liable for any breakage nor for damages that occur during transport, unless the packaging was carried out faulty. Unless specified differently in the order confirmation, the purchase price shall be due net (without deduction) within 30 days of the invoice date. Statutory regulations regarding the consequences of payment in default shall be applicable. Any discounts granted shall become void in case of judicial or out-of-court settlements, insolvency or default of payment and in case of judicial recovery of debts. The same legal consequences shall become effective on the 31st day after the invoice has become due. The deduction of a discount shall require a special written agreement. The prices are in EURO such that any currency loss shall be excluded upon receipt of payment. Additional and special services shall be billed separately.
IV. Delivery deadlines
Deliveries shall be performed ex works. Deadlines and schedules indicated by us for deliveries and services shall only be approximations unless a fixed deadline or a fixed date was expressly promised or agreed upon and after, at the point in time of such a written commitment, any and all technical details having been clarified conclusively. The deadline shall be considered to have been adhered to if the delivery subject has left the works by the time of its expiration or the readiness for shipment has been communicated. Even in case of binding, contractually agreed upon deadlines and schedules, we shall not be liable for delays in delivery and performance due to force majeure or due to events that materially impede our delivery not only temporarily or make delivery impossible. They entitle us to delay the delivery and/or the service by the amount of time of the hindrance plus a reasonable start-up period or to cancel the contract wholly or in part as far as the portion of it not yet delivered is concerned.
If the hindrance lasts more than three months, the buyer / ordering party shall be entitled, after setting a reasonable grace period, to withdraw from the contract with respect to the portion not yet delivered. If the delivery period is extended or if we are freed from our obligation, the buyer / ordering party cannot use this to derive claims for damages. However, we shall only be entitled to refer to the above-mentioned circumstances if we inform the buyer / ordering party of these immediately.
In general, we shall not be obligated to adhere to the delivery deadlines if the buyer / ordering party does not fulfil its contractual obligations towards us in a timely manner. If the buyer / ordering party does not carry out its obligations to cooperate, the delivery period shall be extended by a reasonable period of time.
If the buyer is defaulting on acceptance or if the buyer culpably violates other duties of cooperation, we shall be entitled to demand compensation for any resulting damages including any possible additional expenditures.
If the prerequisites of default of acceptance or a default of the debtor exist, the risk of an accidental loss or an accidental deterioration of the purchased item shall transfer to the customer.
Other than that, we shall only be liable in accordance with the statutory regulations.
To the extent that we are responsible for failing to observe bindingly agreed-upon deadlines and dates or are in default, we shall be liable, for each completed week of delay, in the context of a flat-rate compensation for delay in the amount of 0.5 % of the delivery value, however, no more than a maximum of 5 % of the delivery value. Customer shall remain entitled to further statutory claims and rights.
V. Terms & Conditions of Payment
Any and all payments shall be due in cash without any deduction within 30 days of the invoice date free our payment office, or within 10 days with a 2% discount. On invoices below a value of the goods of 500 Euro, no discount may be taken. Invoices for installation work shall be due immediately and without any deduction. The reported readiness for shipment shall be considered identical to delivery.
Bills of exchange and cheques will be accepted only on for performance, bills of exchange only subsequent to prior agreement and only under the prerequisite of their discountability. Discount charges will be billed from the date the invoice amount becomes due. Any warranty for correct presentation of the bill of exchange and submission of a protest of a bill of exchange shall be excluded.
If payment is not made on time, we shall be entitled to:
- charge interest in the amount of 5% above the respective base interest rate of the European Central Bank which will be billed 30 days after the due date and receipt of an invoice or an equivalent request for payment; the assertion of further damages as well the rights arising from § 326 BGB shall remain reserved unless the ordering party can prove that a damage did not occur or is significantly lower than the flat rate;
- immediately assert against the ordering party any and all claims arising from this transaction or other transactions, even if they are not yet due;
- assert our right of retention for our deliveries or other services arising from this order or other orders until the complete fulfilment of any and all of our still open claims arising from this order or other order by the ordering party;
- demand reasonable sureties;
- demand back from the ordering party the goods we delivered.
Ordering party shall be entitled to offsetting rights only if its counterclaims have been judicially determined, are uncontested, or have been acknowledged by us. Furthermore, ordering party shall only be entitled to exercise a right of retention to the extent that its counterclaim is based on the same contractual relationship.
We shall be entitled to execute or perform outstanding deliveries or services only against advance payment or collateral security if – after General Terms & Conditions of Sale, Delivery, and Payment (GT&C SDP) - effective 01 May 2018 conclusion of the contract - we become aware of circumstances that would be suited to considerably reduce the creditworthiness of the buyer / ordering party and through which the payment of our outstanding claims by the buyer / ordering party from the respective contractual relationship is endangered.
VI. Shipment and Transfer of Risk
The shipment is carried out ex works unless a specific deviating agreement was specified. In case of a lack of special instructions by the ordering party, the choice of forwarding route and means of transportation shall be carried out by us at our dutifully executed discretion without being liable for the cheapest and quickest shipment and on-time arrival. The risk shall transfer to the ordering party once the delivery leaves our works or if and when it was made available to the ordering party via notification of readiness for shipment. In any and all cases, shipment shall be carried out on account of and at the risk of ordering party. We shall not be obligated to purchase insurance policies against damages of any and all kind. If we, in our dutifully executed discretion or upon the ordering party’s request, purchase insurance policies, the costs shall be borne by the ordering party.
Goods reported as ready for shipment must be taken over immediately and will be billed as “delivered ex works”.
VII. Reservation of Title
Until the fulfilment of any and all claims (including any and all unsettled balances from current accounts) that we are entitled to for any legal reason from the buyer / ordering party, now or in the future, we shall be granted the following sureties which we will release, upon request, at our discretion, to the extent that their value sustainably exceeds the claims by more than 10%. The goods shall remain our property. Until payment has been made in full for services, the buyer / ordering party shall not be entitled to pledge or assign the goods as surety to third parties.
Processing or transformation is always performed for us as the manufacturer, however, without any obligation on our part. If our (co)-ownership is lost due to processing, it is already now agreed that the (co)-ownership of the buyer / ordering party in the joint item is ceded to us in proportion to its value (invoice value). We will keep the (co)-ownership safe free of charge. Hereinafter, goods that are (co)-owned by us shall be referred to as Goods Subject to Retention of Title.
As long as buyer / ordering party is not in arrears, they shall be entitled to process and sell the Goods Subject to Retention of Title in the due course of business. Pledgings or assignments as security shall not be permitted. By way of security, buyer shall already now assign to us in full all claims arising from resale or another legal reason (insurance, tort) with respect to the Goods Subject to Retention of Title. We revocably authorise buyer to collect the claims assigned to us for buyer's account in buyer's own name.
This direct debit authorization may be revoked only if buyer / ordering party does not fulfil its payment obligations properly.
In case of access of any kind by third parties to Goods Subject to Retention of Title, we hereby remind buyer / ordering party is reminded of our ownership and to notify us immediately. If the third party is not able to reimburse us for the judicial or extra-judicial costs incurred in this matter, buyer / ordering party shall be liable to us for such costs.
In case of buyer / ordering party acting contrary to the terms of the contract - in particular in case of default of payment - we shall be entitled to take back the Goods Subject to Retention of Title or, where applicable, to demand assignment of the surrender claims of buyer / ordering party against third parties. Neither the taking back nor the garnishment of the Goods Subject to Retention of Title by us shall constitute a withdrawal from the contract. Upon taking back the purchased goods, we shall be entitled to reutilise them; after the deduction of reasonable utilisation costs, the proceeds from the sale shall be offset against what Customer owes.
Ordering party's claims for defects presuppose that, in accordance with § 377 German Commercial Code (HGB), ordering party properly fulfilled its inspection and complaint obligations it owed.
If the purchased good does have a defect, ordering party shall - at its discretion - be entitled to remedy of this in form of a correction of the defect or via delivery of a new defect-free item. In the event of removal of defect or replacement delivery, we shall be obligated to bear any and all expenditures for the purpose of secondary fulfilment, in particular transport, travel, work, material costs as well as the expenditures for the removal of the defective and the installation or attachment of the reworked or delivered defect-free item, unless these are increased by the fact that the purchased good was moved to a location other than the place of fulfilment.
If the remedy fails, Customer shall - at its discretion - have the right to demand withdrawal or reduction. We shall be liable in accordance with the statutory provisions insofar as Customer makes claims for damages that are a result of intent or gross negligence, including intent or gross negligence of our representatives or vicarious agents. Unless we are accused of being in deliberate breach of contract, our liability for damages shall be limited to the foreseeable, typically occurring damage.
In accordance with the statutory regulations, we shall be liable if we culpably violated a material contractual obligation; even in this case, the liability for damages shall be limited to the foreseeable, typically occurring damage. To the extent not specified otherwise above, any liability shall be excluded.
Liability for culpable injury to life, limb or health shall remain unaffected; this shall also apply to mandatory liability in accordance with the German product liability law.
The period of limitation for claims for defects shall be 12 months from the date of the transfer of risk. This shall not apply if the purchased good is typically used for a building structure and has caused the defect.
Costs of installation and de-installation shall be borne by us if the item was - in accordance with its type and its intended purpose - installed in another item or attached to another item and if we are liable for the defect that is causative for the assertion of the claims for subsequent performance.
IX. Impossibility, Delay and Other Liability
Ordering party may only withdraw from contract
- if prior to the transfer of risk, delivery or performance in full prior to transfer of risk becomes conclusively impossible for us;
- if we are in default of delivery with expressly guaranteed delivery times and we do not comply with the grace period due to our fault despite the setting of a reasonable grace period by the ordering party with ordering party’s express declaration that it will refuse acceptance of the delivery or service after expiry of this grace period.
If the impossibility or the delay of delivery and service arises during the delay of acceptance or due to ordering party’s fault, ordering party shall remain obligated to quid pro quo performance.
Any further liability for damages other than that provided in VIII. shall be excluded - regardless of the legal nature of the asserted claim. This shall, in particular, apply to claims for damages arising from negligence at the conclusion of the contract, due to damages because of other breaches of obligations, or damages because of tortuous claims for compensation for damages in accordance with § 823 BGB.
This shall also apply to claims for damages due to non-fulfilment, but only to the extent that compensation for indirect or consequential damages is demanded, unless the liability is based on an assurance that is intended to hold buyer / ordering party harmless of the risk of such damages. Any liability shall be limited to damages foreseeable at the conclusion of contract. In any case, any liability on our part in accordance with the German Product Liability Act and other claims arising from manufacturer’s liability shall remain unaffected. We have liability insurance. Our liability shall be limited in its amount to the insurance amount. Insofar as liability for damages against us is excluded or limited, this shall also apply with respect to the personal liability for damages of General Terms & Conditions of Sale, Delivery, and Payment (GT&C SDP) - effective 01 May 2018 our employees, workers, collaborators, representatives and vicarious agents.
In case of defects of components from other manufacturers that we cannot fix due to licensing or factual reasons, we shall - at our discretion - be entitled to assert our warranty claims against the manufacturers and suppliers on behalf of Client or assign them to Client. Warranty claims against us shall exist in case of defects of this kind under the other prerequisites and in accordance with these General Terms & Conditions of Delivery only, if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is hopeless, e.g. due to a bankruptcy. For the duration of the legal dispute, the period of limitation of the respective warranty claims of buyer / ordering party against us shall be suspended. The warranty shall be null and void if buyer / ordering party, without our approval, modifies the delivery subject or has it modified by third parties and as a result renders a correction of defects impossible or unreasonably difficult. In any case, buyer / ordering party shall bear the additional costs of correction of defects caused by the modification.
X. Final Provisions
Place of fulfilment for the whole contractual content shall be Iserlohn (Germany). Other than that, the laws of the Federal Republic of Germany shall solely apply to these Terms and Conditions and to all legal relationships between the contractual parties.
Iserlohn (Germany) shall be the exclusive place of jurisdiction for any and all disputes arising from the contractual relationship. This shall also apply to claims that are asserted in judicial dunning proceedings. We reserve the right to sue the ordering party in the court responsible for its place of residence / headquarters. Should individual parts of the above Terms and Conditions of Delivery and Payment be or become ineffective, this shall not affect the remaining parts.
MARX GmbH & Co. KG
Phone.: +49 (0) 2371 - 21 05 0
Fax: +49 (0) 2371 - 21 05 11
MARX Ofenbau GmbH
Phone: +49 (0) 906 - 127 997-50
Fax: +49 (0) 906 - 127 997-97
MARX Elektrowärme GmbH
Phone: +49 (0) 3302 - 200 93 0
Fax: +49 (0) 3302 - 200 93 8