General Business Terms and Conditions
Deliveries and other services of Martechnic GmbH shall be rendered at our terms and conditions below.
§ 1 Sphere of applicability
(1) They shall apply exclusively to Customers. We shall recognise any opposing terms and conditions or terms and conditions of the Customer that deviate from our Sales Terms and Conditions only if we have expressly approved their validity in writing.
(2) These General Business Terms and Conditions shall also apply to all future business dealings with the Customer to the extent that they involve legal dealings of a related type.
§ 2 Offer and scope of service
(1) An offer shall be considered to be non-binding provided that nothing to the contrary is specified on the offer. If the Customer awards an order, then it shall be bound to its order for eight weeks.
(2) Martechnic GmbH reserves all rights of ownership and copyrights to illustrations, sketches and other documents. This shall apply particularly to such written documents which have been designated as being confidential.
§ 3 Prices and payment
(1) If nothing to the contrary is agreed in writing, then our prices shall be valid ex works excluding packaging and in addition to the VAT in the respectively valid statutory amount. Packaging costs shall be separately billed.
(2) The payment of the purchase price must be made exclusively to Martechnic GmbH’s bank accounts. The availment of discounts is possible only upon special written agreement.
(3) If nothing to the contrary is agreed, then the purchase price shall come due for payment without any discounts within 30 days after date of invoicing. Any default interest shall be charged in the amount of 5 % above the respective base lending rate p.a. We reserve the right to assert any more substantial default damages.
(4) If no fixed pricing agreement has been reached, we reserve the right to make appropriate price changes owing to changed wage, material and distribution costs for deliveries which take place four months or later after the contractual conclusion.
§ 4 Offsetting and rights of retention
The Customer shall be entitled to a right to offset only if its counterclaims have been legally upheld or are undisputed. The Customer shall be entitled to exercise a right of retention only if its counterclaim is based upon the same contractual relationship.
§ 5 Delivery period
(1) Delivery timeframes shall be considered to be non-binding. The beginning of the delivery period that we have stipulated shall require the timely and proper fulfilment of the Customer’s obligations as well as the clarification of all technical issues. We reserve the right to assert the defence of contractual non-fulfilment. In the event of force majeure, late delivery upon the part of our own suppliers (for a concrete covering transaction) or other events making the delivery more difficult, the delivery timeframe shall be correspondingly extended.
(2) If the Customer enters into delivery acceptance default or culpably violates other cooperation obligations, then we shall be entitled to demand damage compensation for any damages we have incurred, including any additional expenditures. We reserve the right to assert any more extensive claims. If the aforementioned requirements exist, then the risk of the accidental destruction or accidental deterioration of the supplied goods shall be transferred to the Customer at the point in time in which it has entered into delivery acceptance default or payment default.
(3) If we are late with our delivery, then an appropriate extension period must be granted to us. After the unsuccessful lapsing of the extension period, the Customer may withdraw from the agreement.
(4) In the event of a late delivery, we shall be liable only for intentional wrongdoing or gross negligence in accordance with the statutory provisions. In the event of a late delivery owing to simple negligence, liability shall be limited to contractually typical and foreseeable damages. The liability limit shall not apply in the event of liability owing to loss of life, physical injury or damage to health. Any change in the burden of proof to the detriment of the Customer is not associated with the aforementioned provisions.
(5) We shall assume no procurement risk. Thus, we are entitled to withdraw from the agreement if we, despite the prior conclusion of a purchasing agreement upon our part, do not receive the delivery object whereby our responsibility for intentional wrongdoing or negligence shall remain unaffected. We shall immediately notify the Customer of the untimely provision of the delivery object and, in the event of a contractual rescission, we shall thus immediately exercise our right of rescission. In the event of a rescission, we shall immediately reimburse the Customer for any corresponding counter-performances.
§ 6 Transfer of risk
(1) If nothing to the contrary is agreed in writing, our warehouse shall be the place of performance. If, upon the Customer’s request, the goods are shipped to it, then the risk of the accidental destruction or accidental deterioration of the goods shall be transferred to the Customer by no later than when the goods leave the warehouse. This shall apply regardless of whether the shipment of the goods is made from the place of performance or who assumes the freight costs.
(2) The shipment ex warehouse shall be made on the account and at the risk of the Customer. Unless the Customer issues special instructions, the Seller shall assume no obligation for ensuring that the cheapest or fastest shipping method is used. Transport insurance shall be taken out by the Seller only upon the express instructions of the Customer and at its expense; otherwise, the goods shall be insured in accordance with the respective shipping terms and conditions of the carrier.
§ 7 Reservation of ownership
(1) We reserve the ownership rights to the delivery object until payment in full has been made of all payment claims arising from the delivery agreement. This shall also apply to all future deliveries even if we have not always expressly made reference to them. We shall be entitled to take back the delivered goods if the Customer commits a contractual violation (e.g., in the event of payment default).
(2) As long as ownership has not been transferred to it, the Customer shall be obliged to handle the delivered goods with due care. It must also sufficiently insure the delivered goods at replacement value at its own expense against damages arising from fire, water and theft. If maintenance and inspection work must be carried out, then the Customer must have it carried out in a timely fashion at its own expense. As long as ownership has not yet been transferred, the Customer must immediately notify us in writing if the delivery object has been attached or there are other third-party interventions. If the third party is not able to reimburse us for the legal and extra-judicial costs of a lawsuit in accordance with §771 ZPO [German Code of Civil Procedures], then the Customer shall be liable to us for the financial costs we have incurred.
(3) The handling and processing or reworking of the delivery objects by the Customer shall always be carried out in our name and on our behalf. In this case, the expectancy right of the Customer to the supplied goods shall continue to apply for the reworked goods. If the supplied goods are processed with other goods not belonging to us, we shall acquire co-ownership to the new goods in the proportion of the objective value of our supplied goods to the other goods being processed at the time of the processing.
(4) The Customer shall be entitled to resell the supplied goods in ordinary business dealings. However, for security purposes, the Customer shall assign to us all payment claims from such a resale in the amount of our sales price (including VAT) without any further special declaration being required. Where applicable, such an assignment shall also include current account balance payment claims of the Customer against its own customers in the amount of our sales price. The Customer must agree with its own customer that its own customer will only then acquire ownership when payment in full is made. The Customer shall be entitled to collect the payment claims assigned to us for security purposes until we revoke such right. In the event that an important reason exists, particularly in the event of payment default, discontinuation of payments, a petition to open bankruptcy proceedings, protest of a bill of exchange or justified suspicion that the Customer has excessive debt or imminent insolvency looms for the Customer, we shall be entitled to revoke the Customer’s authorisation to collect payment claims. Furthermore, after having sent a warning letter, we may, subject to the provision of appropriate notice, disclose the assignment of security, exploit the payment claims that have been assigned to us as well as demand that the Customer disclose to its own customers this assignment of security. If we revoke the Customer’s right to collect payment claims, its own customer shall furthermore be obliged to immediately provide us with all information required in order for us to safeguard our rights and pursue legal remedies. In the event of payment default, we shall be entitled to forbid the resale of our goods which are subject to reservation of ownership and to demand their return or the assignment of indirect ownership to them. The Customer shall already now consent to our confiscation of our goods which are subject to reservation of ownership.
§ 8 Warranty
(1) Immediately upon their receipt, the Customer must examine the goods we have supplied in accordance with § 377 HGB [German Commercial Code] and notify us of any defects. If the delivery object was defective when risk was transferred, then we shall have the choice of either eliminating the defect (rectification) or delivering a flawless product (replacement delivery). Replaced parts shall become our property.
(2) The Customer shall not be entitled to eliminate the defects itself or have them eliminated unless we are late in eliminating the defect or it is necessary to eliminate the defect owing to urgent operational requirements or there is imminent danger looming.
(3) In the event that a replacement delivery is made, our warranty shall be limited to the costs for the replacement parts as well as shipping costs.
(4) If the rectification or replacement delivery is unsuccessful, the Customer may – in accordance with the statutory directives – choose to either reduce the purchase price or withdraw from the agreement.
(5) For material defects involving the delivery of goods which we procure from third parties and supply to the Customer in unaltered form, we assume no liability; our responsibility for intentional wrongdoing or negligence shall remain unaffected.
(6) Otherwise, we shall be liable in accordance with the statutory directives if the Customer asserts damage compensation claims which are based upon intentional wrongdoing or gross negligence upon our part. Furthermore, we shall be liable only in accordance with the German Product Liability Act owing to the loss of life, physical injury or damage to health, owing to the culpable violation of essential contractual obligations or if we fraudulently conceal the defect or have provided a warranty for certain quality features of the delivery object. The damage compensation claim for the violation of essential contractual obligations shall nonetheless be restricted to contractually typical, foreseeable damages; the liability for damages caused by the delivery object to the Customer’s legal assets (e.g., damages to other objects) shall be nonetheless excluded; the restriction to foreseeable damages or the exclusion of liability shall not apply if intentional wrongdoing or gross negligence exists or liability exists owing to loss of life, physical injury or damage to health or we have fraudulently concealed the defect or have provided a warranty for the quality features of the delivery object.
(7) The provisions in the aforementioned Para. 6 shall also extend to damage compensation in addition to performance and damage compensation instead of performance, regardless of the legal grounds, particularly owing to defects, violations of obligations from the contractual relationship or tortious acts. It shall also apply to any claims for the reimbursement of futile expenditures. The liability for default / impossibility of performance shall nonetheless be determined in accordance with § 5 of these Business Terms and Conditions.
(8) Any change in the burden of proof to the detriment of the Customer shall not be associated with the aforementioned provisions.
(9) The statute of limitations period for claims for defects shall amount to 12 months from the time that risk is transferred.
§ 9 Legal venue, place of performance
(1) The entire legal relationships of the parties shall be subject to the law of the Federal Republic of Germany subject to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(2) The place of performance and exclusive legal venue for all disputes arising from this agreement is Hamburg.
§ 10 Miscellaneous
In the event that individual provisions of this agreement should be or become invalid or contain a gap or an omission, then the remaining provisions shall continue to be unaffected.