General Terms and Conditions (GTC) of marstall GmbH
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§ 1 - Scope of application
(1) All our deliveries, services and offers are exclusively based on these General Terms and Conditions (hereinafter referred to as GTC). These are an integral part of all contracts which we conclude with our contractual partners (hereinafter referred to as "Customers") for the deliveries or services offered by us. Only orders placed via our web shop/online shop are subject to different general terms and conditions.
(2) The GTC apply both to consumers (§ 13 BGB) and to companies (§ 14 BGB). Should individual clauses only apply in the contractual relationship with entrepreneurs and not in the contractual relationship with consumers, this is expressly mentioned in the corresponding clauses, for example in the following clause in § 1 para. 3.
(3) If the customer is an entrepreneur, these terms and conditions shall also apply to all future deliveries, services or offers to the customer, even if they are not separately agreed again, and, if these future transactions do not involve orders via our web shop/online shop.
(4) Terms and conditions of the customer or third parties shall not apply, even if we do not separately object to their validity in individual cases. Even if we refer to a letter which contains or refers to the terms and conditions of the customer or a third party, this does not constitute an agreement with the validity of those terms and conditions.
(5) Insofar as these General Terms and Conditions do not contain any provisions on individual subjects of regulation, the Uniform Conditions in the German Grain Trade shall apply in addition in their current version for transactions with entrepreneurs in the case of sales of grain and oilseeds and the Uniform Conditions in the German Grain Trade and the Hamburg Feed Consignment Note for sales of animal feed.
§ 2 - Offer, conclusion of contract
(1) All our offers are subject to change and non-binding, unless they are expressly marked as binding or contain a specific period of acceptance. We can accept orders or assignments within fourteen days of receipt.
(2) The purchase contract is concluded by acceptance of the order following the order or contract. Reference is made to the provision in § 10.
(3) Information on the object of our delivery or service (e.g. weights, dimensions, utility values, technical data) as well as our representations of the same (e.g. illustrations) are only approximate, unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics of quality, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that are based on legal regulations or represent technical improvements are permissible insofar as they do not impair the usability for the contractually intended purpose.
§ 3 - Prices, payment, offsetting
(1) Unless otherwise agreed, our stated (net) prices in euros and plus value added tax at the statutory rate shall apply. Our prices are ex works.
(2) Unless otherwise agreed, packaging and shipping costs are to be paid separately. Pallets shall be invoiced in accordance with standard commercial practice and shall only be taken back in a defect-free condition.
(3) Insofar as the agreed prices are based on our list prices and delivery is not to take place until more than four months after conclusion of the contract, our list prices valid at the time of delivery shall apply (in each case less any agreed percentage or fixed discount).
(4) Unless otherwise agreed, the purchase price shall be due for payment upon delivery of the object of purchase (goods).
(5) If we agree to payment after invoicing, invoice amounts are to be paid immediately without deduction, unless otherwise agreed in writing or stated on the invoice. Decisive for the timeliness of the payment is the date of receipt of the payment by us.
(6) If the customer does not pay when due, the outstanding amounts shall bear interest at the statutory interest rates from the due date. We reserve the right to assert further damages caused by default.
(7) Offsetting against counterclaims of the customer or withholding of payments due to such claims is only permissible if the counterclaims are undisputed or have been legally established.
(8) We shall be entitled to execute or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, we become aware of circumstances which are likely to substantially reduce the creditworthiness of the customer and which could lead to the payment of our outstanding claims by the customer.
(9) If an intra-Community delivery is exempt from turnover tax pursuant to §§ 4 No. 1 lit.) b, 6a UStG, the customer is obliged to send us a confirmation of receipt within 30 days of receipt of the goods. If the customer does not comply with this obligation, we are entitled to recalculate the value added tax. In these cases, the ownership of the delivered goods is transferred, in deviation from § 9 para. 1, at the earliest upon receipt of the confirmation of receipt by us or upon full payment of the purchase price including the subsequently charged VAT.
§ 4 - Delivery, delivery time
(1) Deliveries shall be ex works.
(2) Deadlines and dates for deliveries and services promised by us are always approximate unless a fixed deadline or date is expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.
(3) We shall not be liable for impossibility of delivery or for delays in delivery if these are caused by force majeure or other events that were not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortage of labour, energy or raw materials, difficulties in procuring necessary official permits, official measures or the failure of, incorrect or untimely delivery by suppliers) for which we are not responsible. Insofar as such events make delivery or performance considerably more difficult or impossible for us and the hindrance is not only of a temporary nature, we shall be entitled to withdraw from the contract. In the case of hindrances of temporary duration, the delivery or service deadlines are extended or the delivery or service dates are postponed by the period of the hindrance plus a reasonable start-up period. If the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediate written declaration to us.
(4) We shall be entitled to make partial deliveries if the partial delivery is usable for the Customer within the scope of the contractual purpose, if the delivery of the remaining ordered goods is ensured and if the Customer does not incur any considerable additional work or additional costs as a result (unless we declare ourselves willing to assume these costs).
(5) If we are in default with a delivery or service or if a delivery or service becomes impossible for us, for whatever reason, our liability is limited to compensation for damages in the case of a sale to a consumer in accordance with § 6 and in the case of a sale to an entrepreneur in accordance with § 8 of these GTC.
§ 5 - Place of performance, dispatch, transfer of risk
(1) Unless otherwise agreed, the place of performance for all obligations arising from the contractual relationship is Oberstaufen.
(2) If the delivery of the object of purchase is agreed, the mode of dispatch and packaging are subject to our dutiful discretion.
(3) If delivery free yard / unloading point has been agreed, the customer must ensure that the access road and the unloading point is passable and accessible by at least a 40-tonne truck (total weight of the truck train). Additional costs due to lack of readiness for acceptance at the delivery point shall be borne by the customer.
(4) We will only insure the consignment against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the customer and at the customer's expense.
(5) The risk shall pass to the customer at the latest when the object of purchase is handed over (whereby the start of the loading process shall be decisive) to the freight forwarder, carrier or other third party designated to carry out the shipment. This also applies if the transport is carried out by us or if partial deliveries are made. If dispatch or handover is delayed as a result of circumstances for which the customer is responsible, the risk shall pass to the customer on the day on which the object of purchase is ready for dispatch and we have notified the customer of this.
§ 6 - Warranty and liability for sales to consumers
(1) In the event of defects in the purchased goods, the buyer, who is a consumer, shall be entitled to the statutory rights.
(2) The basis of our warranty and liability for defects is above all the agreement reached on the quality of the goods. The agreement on the quality of the goods shall be deemed to include in particular all product descriptions and also the stated best-before dates (MHD). If no express agreements on a MHD have been made, a standard warranty period for the goods shall apply.
(3) However, our liability for damages, regardless of the legal basis (in particular in the event of delay, defects or other breaches of duty), is limited in these cases to the foreseeable damage typical for the contract.
(4) The above limitation of liability shall not apply to our liability for wilful conduct or gross negligence, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.
§ 7 - Warranty for sales to entrepreneurs
(1) The warranty for sales to entrepreneurs is determined by the provisions of this § 7.
(2) § 6 Para. 2 applies accordingly.
(3) The warranty period shall be one year from delivery or, where acceptance is required, from acceptance. This period shall not apply to claims for damages by the customer arising from injury to life, body or health or from wilful or grossly negligent breaches of duty by us or our vicarious agents, which shall be time-barred in accordance with the statutory provisions.
(4) The delivered objects of purchase must be carefully examined immediately after delivery to the customer or to the third party designated by the customer. With regard to obvious defects or other defects which would have been recognisable in an immediate, careful inspection, they shall be deemed to have been approved by the customer if we do not receive a notice of defects within seven working days of delivery. With regard to other defects, the objects of purchase shall be deemed to have been approved by the customer if we do not receive a notification of defects within seven working days of the time at which the defect became apparent. If the defect was already recognisable to the customer at an earlier point in time during normal use, however, this earlier point in time is decisive for the start of the complaint period. At our request, a delivery item which is the subject of a complaint must be returned to us carriage paid. In the event of a justified complaint, we shall reimburse the costs of the most favourable dispatch route; this shall not apply if the costs increase because the object of purchase is located at a place other than the place of intended use.
(5) In the event of material defects of the delivered goods, we shall be obliged and entitled to choose between repair or replacement within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement delivery, the customer may withdraw from the contract or reduce the purchase price appropriately.
(6) If a defect is due to our fault, the customer may claim damages under the conditions set out in § 8 below.
(7) A delivery of used items agreed with the customer in individual cases shall be effected to the exclusion of any warranty for material defects.
§ 8 - Liability for sales to entrepreneurs
(1) Liability in the case of sales to entrepreneurs is determined by the following provisions of this § 8.
(2) Our liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, shall be limited in accordance with the provisions of this § 8, insofar as fault is involved.
(3) We shall not be liable in the event of simple negligence on the part of our executive bodies, legal representatives, employees or other vicarious agents, unless it is a matter of a breach of material contractual obligations. Essential contractual obligations include in particular the obligation to deliver the object of delivery on time, its freedom from defects of title and such material defects that impair its functionality or suitability for use more than just insignificantly, as well as obligations to provide advice, protection and care, which are intended to enable the customer to use the object of purchase in accordance with the contract or to protect life and limb of the customer's personnel or to protect the customer's property from considerable damage.
(4) Insofar as we are liable for damages on the merits pursuant to the provision in § 8 (3), this liability shall be limited to damages which we foresaw at the time of conclusion of the contract as a possible consequence of a breach of contract or which we should have foreseen if we had exercised due diligence. Indirect damages and consequential damages resulting from defects of the object of purchase are furthermore only eligible for compensation if such damages are typically to be expected when the object of delivery is used as intended.
(5) The above exclusions and limitations of liability shall apply to the same extent in favour of our executive bodies, legal representatives, employees and other vicarious agents.
(6) Insofar as we provide technical information or act in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by us, this shall be free of charge and to the exclusion of any liability.
(7) The limitations of this § 8 do not apply to our liability for intentional conduct, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.
§ 9 - Reservation of title
(1) We reserve title to the delivered goods until the purchase price for these goods has been paid in full. § 3 para. 9 remains reserved. During the existence of the reservation of title, the customer may not sell the goods (hereinafter referred to as "reserved goods") or otherwise dispose of or consume the property in them.
(2) In the event of access by third parties - in particular by bailiffs - to the goods subject to retention of title, the customer shall draw attention to our ownership and notify us immediately so that we can enforce our ownership rights.
(3) If the customer acts in breach of contract, in particular in the event of default in payment, we shall be entitled to demand the return of the reserved goods, provided we have withdrawn from the contract.
§ 10 - Export control
The conclusion of the contract is subject to the suspensive condition that there are no obstacles due to national or international regulations, in particular export control regulations. Deliveries and services for the fulfilment of concluded contracts are subject to the proviso that such obstacles do not conflict with these.
§ 11 - Data protection
We take the protection of personal data very seriously, particularly in accordance with the provisions of the DS-GVO and the BDSG. Specific details and information on this are listed on our website under the menu 'Data Protection' within the data protection declaration which can be accessed there.
§ 12 - Property rights and protective rights
We reserve all rights, in particular property and industrial property rights, to all data, information, recipes, manufacturing processes and product compositions provided by us. Such rights are only transferred if and to the extent that they expressly become part of the contract.
§ 13 - Final provisions
(1) If the customer is a merchant, a legal entity under public law or a special fund under public law or if he has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for all possible disputes arising from the business relationship between us and the customer shall be, at our discretion, Oberstaufen or the customer's registered office. In these cases, however, Oberstaufen shall be the exclusive place of jurisdiction for legal actions against us. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
(2) We do not take part in dispute settlement proceedings before a consumer arbitration board within the meaning of the Consumer Dispute Settlement Act (VSBG).
(3) The relationship between us and the customer is subject exclusively to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
(4) Even if these General Terms and Conditions of Business are made available additionally or exclusively in English text form or English version, the German text form or German version shall nevertheless be exclusively authoritative.
- End of these AGB; status Nov. 2018