General Terms and Conditions (GTC)
General sales, delivery and payment conditions
- 1 Scope
The deliveries, services and offers of MARKENmerch are made exclusively on the basis of these terms and conditions. These also apply to all future business relationships, even if they are not expressly agreed again. At the latest when the goods or services are received, these conditions are deemed to have been accepted. Counter-confirmations by the buyer with reference to his own terms and conditions of business or purchase are hereby contradicted.
Deviations from these terms and conditions are only effective if MARKENmerch confirms them in writing.
- 2 Formation of the contract
The order is a binding offer. It can be accepted by MARKENmerch within 3 weeks by sending an order confirmation or by sending the ordered goods or the ordered services to the customer within this period.
The sales staff of MARKENmerch are not authorized to make verbal side agreements or to give verbal promises that go beyond the content of the written contract.
- 3 prizes
Any changes, e.g. B. in import and export duties, sales tax, exchange rates, insurance and/or war insurance premiums, which take place after the order has been placed, go in favor of or at the expense of the buyer, without any increases being able to give the buyer reason to cancel the order.
The agreed prices are ex warehouse plus transport and packaging costs unless otherwise agreed and plus the statutory value added tax. Additional deliveries and services will be charged separately.
Dimensions and quantities of the ordered goods are taken into account as accurately as possible. Deviations of 10% above or below are permissible and to be tolerated.
Small deviations in format, color, material, etc., as well as color deviations during printing due to the nature of the material, are tolerated by the customer, unless otherwise agreed in writing.
- 4 Delivery and performance time
Delivery dates or deadlines, which can be agreed as binding or non-binding, must be in writing.
Delays in delivery and performance due to force majeure and due to events that make delivery significantly more difficult or impossible for MARKENmerch - these include in particular strikes, lockouts, official orders, etc., even if they occur at the suppliers of MARKENmerch or their subcontractors - has the MARKENmerch is not responsible for agreed binding deadlines and dates. You entitle MARKENmerch to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up time or to withdraw from the contract in whole or in part because of the part that has not yet been fulfilled.
If the hindrance lasts longer than 3 months, the buyer is entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the part that has not yet been fulfilled. If the delivery time is extended or if MARKENmerch is released from its obligation, the buyer cannot derive any claims for damages from this. MARKENmerch can only refer to the circumstances mentioned if it notifies the buyer immediately.
If MARKENmerch is responsible for the non-compliance with bindingly promised deadlines and dates or is in default, the buyer is entitled to compensation for delay in the amount of 0.5% for each completed week of delay, but a maximum of 5% of the invoice value of the delay affected deliveries and services. Any further claims are excluded, unless the delay is due to at least gross negligence on the part of the seller.
MARKENmerch is entitled to make partial deliveries and partial services at any time.
If it is agreed that the buyers will specify their order in more detail, e.g. with regard to dimensions, design, models, and the buyers have exceeded the agreed deadline for the specification, any resulting delay in delivery will be at their expense, without prejudice to the law MARKENmerch to cancel the order not specified in time in whole or in part.
If goods are sold by MARKENmerch duty unpaid, an increase in import duties, sales tax and/or other taxes and/or duties does not entitle the buyer to cancel the order; A change in any quality regulations and/or objections that should be raised by third parties on the basis of patent specifications, trademarks and other similar rights can under no circumstances lead to the cancellation of the order by the buyer.
If the buyers do not take receipt of the goods immediately on arrival, for whatever reason, all costs arising therefrom shall be for their account, without prejudice to our right to sell the goods to a third party and the original buyers for one liable for any loss.
- 5 Passing of Risk
The risk passes to the buyer as soon as the shipment has been handed over to the person responsible for the transport or has left the MARKENmerch warehouse or the warehouse of the MARKENmerch supplier for the purpose of shipment. If shipping becomes impossible through no fault of MARKENmerch , the risk passes to the buyer upon notification of readiness for shipping.
- 6 Warranty against Defects
The customer's warranty rights presuppose that he has properly complied with his obligations to examine and give notice of defects according to §§ 377, 378 HGB.
If there is a defect in the purchased item for which MARKENmerch is responsible, it is entitled to choose between remedying the defect or delivering a replacement. In the event that the defect is remedied, he is obliged to bear all the expenses required for the purpose of remedying the defect, in particular transport, travel, labor and material costs, insofar as these are not increased by the fact that the purchased item was taken to a place other than the place of performance.
If MARKENmerch is not willing or able to remedy the defect/replacement, in particular if this is delayed beyond a reasonable period of time for reasons for which MARKENmerch is responsible, or if the remedy of the defect/replacement fails in any other way, the customer is Wahl is entitled to withdraw from the contract or to demand a corresponding reduction in the purchase price.
Unless otherwise stated below, further claims by the customer - regardless of the legal grounds - are excluded. MARKENmerch is therefore not liable for damage that has not occurred to the delivery item itself; in particular, it is not liable for lost profits or other financial losses suffered by the customer.
The above exemption from liability does not apply if the cause of the damage is based on intent or gross negligence. It also does not apply if the customer asserts claims for damages due to non-performance in accordance with Sections 463, 480 (2) BGB due to the lack of a guaranteed property.
If MARKENmerch negligently violates an essential contractual obligation, its liability for damage to property or personal injury is limited to the coverage amount of its product liability insurance. Upon request, he is prepared to allow the customer to inspect the insurance policy.
The warranty period is 6 months. This period also applies to claims for compensation for consequential damages, insofar as no claims from tort are asserted.
MARKENmerch does not assume any warranty/guarantee for the print execution without a print/outlet sample.
In the case of deviations in the print status and the printing color caused by the printing process, MARKENmerch cannot assume any warranty/guarantee due to the material properties and product color.
- 7 retention of title security
MARKENmerch retains ownership of the purchased item until all payments from the business relationship with the customer have been received. In the event of breach of contract by the customer, in particular default in payment, MARKENmerch is entitled to take back the purchased item. Taking back the purchased item does not constitute a withdrawal from the contract, unless MARKEN merch .de expressly declares this. The seizure of the purchased item by MARKENmerch always constitutes a withdrawal from the contract. After taking back the purchased item, MARKENmerch is authorized to sell it;
In the event of seizure or other interventions by third parties, the customer must notify MARKENmerch in writing immediately so that MARKENmerch can object to the seizure. Insofar as the third party is not able to reimburse MARKENmerch for the court and out-of-court costs of its third-party objection action, the customer is liable for the failure.
The customer is entitled to resell the purchased item in the ordinary course of business; However, he already assigns to MARKENmerch all claims in the amount of the final invoice amount (including VAT) that accrue to him from the resale to his customers or third parties, regardless of whether the purchased item has been resold without or after processing. The customer remains authorized to collect this claim even after the assignment. The authority of MARKENmerch to collect the claim itself remains unaffected. However, MARKENmerch undertakes not to collect the claim as long as the customer meets his payment obligations from the proceeds received, does not default in payment and, in particular, no application for the opening of bankruptcy or composition proceedings has been filed or payments have been suspended. In the event of a cessation of payments or in the event of an application for the opening of bankruptcy or composition proceedings, MARKENmerch can demand that the customer disclose the assigned claims and their debtors in detail and hand over all documents required for collection and inform the debtors (third parties) of the assignment .
If the purchased item is inseparably mixed with other items that do not belong to MARKENmerch , MARKENmerch acquires co-ownership of the new item in proportion to the value of the purchased item to the other mixed items at the time of mixing. If mixing takes place in such a way that the customer's item is to be regarded as the main item, it is agreed that the customer transfers proportionate co-ownership to MARKENmerch . The customer keeps the sole or joint ownership acquired in this way for MARKENmerch .
MARKENmerch undertakes to release the securities to which it is entitled at the request of the customer insofar as the value of the securities exceeds the claims to be secured by more than 20%; MARKENmerch is responsible for selecting the securities to be released.
- 8 payment
Unless otherwise agreed, MARKENmerch invoices are payable without deduction 30 days after invoicing. MARKENmerch is entitled, despite the buyer's provisions to the contrary, to initially offset payments against his older debts and will inform the buyer of the type of offsetting that has taken place. If costs and interest have already been incurred, MARKENmerch is entitled to offset the payment first against the costs, then against the interest and finally also against the main service.
A payment is only deemed to have been made when MARKENmerch can dispose of the amount. The acceptance of checks requires a written agreement when the order is placed; the payment is deemed to have been made when the period of 7 days after the check has been cashed has expired.
If the buyer is in default, MARKENmerch is entitled to charge interest at the rate calculated by the seller's house bank for overdrafts plus statutory sales tax from the relevant point in time.
If MARKENmerch becomes aware of circumstances that call into question the creditworthiness of the buyer, MARKENmerch is entitled to make the entire remaining debt due, even if it has accepted checks. In this case, MARKENmerch is also entitled to demand advance payments or security deposits. MARKENmerch reserves the same right for first-time customers.
- 9 Limitation of Liability
Claims for damages from positive breach of contract, from culpa in contrahendo and from tort are excluded both against MARKENmerch and against its vicarious agents or vicarious agents, unless intentional or grossly negligent action is present. This also applies to claims for damages due to non-performance, but only to the extent that compensation for indirect or consequential damage is required, unless the liability is based on an assurance that is intended to protect the buyer against the risk of such damage
Any liability is limited to the damage foreseeable upon conclusion of the contract.
In the case of printing, engraving, embroidery and embossing work, MARKENmerch assumes no guarantee or liability for the execution of this further processing without a proof sample.
- 10 copyrights
The customer undertakes to fully indemnify MARKENmerch from claims by third parties regarding the copyright of the customer's orders. Furthermore, the customer grants the permission of the copyright owner to photograph articles manufactured for him, to present them in our respective catalogs and websites and to use them as samples.
- 11 Complaints, Exchange
Complaints about defects can only be considered in writing within 8 days from the date of dispatch, in the case of quality complaints with the sending of a specimen.
Sample deliveries are excluded from complaints, exchange or withdrawal.
- 12 Governing Law, Venue, Severability
The law of the Federal Republic of Germany applies to these terms and conditions and the entire legal relationship between MARKENmerch and the buyer.
The place of performance and jurisdiction for both parties, MARKENmerch and the buyer, is the registered office of MARKENmerch , Mönchengladbach.
Should a provision in these terms and conditions or a provision within the framework of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.