General Terms and Conditions of Murk Wholesaling
§ 1 General, Applicability
- These General Terms and Conditions (GTC) apply to all of our business relationships with our customers (hereinafter referred to as the ‘Purchaser’). These GTC shall only apply if the Purchaser is an entrepreneur (Section 14 of the German civil code (BGB)), a corporate body under public law or a special fund under public law.
- In particular, these GTC apply to contracts on the sale and/or delivery or movable objects (hereinafter also referred to as ‘Goods’), regardless of whether we produce the Good ourselves or acquire it from suppliers (Sections 433 and 651 BGB). Additionally, these GTC apply as amended as a framework agreement for future contracts on the sale and/or delivery of Goods with the same Purchaser, without us being required to refer to them again; in this case, we shall immediately inform the Purchaser of any changes to our GTC.
- Our GTC apply on an exclusive basis. Any deviating, conflicting or supplementary general terms and conditions of the Purchaser shall only be a contractual component if we expressly consent to their applicability. Consent shall always be required, for example even if we carry out deliveries to the Purchaser without reservation despite being aware of the GTC of the Purchaser.
- Individual agreements concluded with the Purchaser on a case-by-case basis (including collateral agreements, supplements and amendments) shall always have priority over these GTC. A written agreement or our written confirmation shall be definitive with regard to the content of such agreements.
- Legal statements and announcements to be provided to us by the Purchaser after the conclusion of the contract (e.g. deadlines, notices of defects, declarations of withdrawal or reductions) must be made in writing in order to be effective.
- References to the applicability of statutory provisions are only to be interpreted as clarifications. Therefore, the statutory provisions shall apply even without such a clarification, in so far as they are not directly modified or expressly excluded by these GTC.
§ 2 Conclusion of Contract
- Our offers are non-binding and without obligation. This shall apply even if we have sent the Purchaser catalogues, samples, other product descriptions or documents – including in electronic formats – to which we retain the property and intellectual property rights.
- The Purchaser placing an order for the Goods shall count as a binding contractual offer. Unless stated otherwise in the order, we are entitled to accept this contractual offer within one week of receiving it.
- We can declare acceptance either in writing (e.g. by issuing an order confirmation) or by delivering the Goods to the Purchaser.
§ 3 Order Documents, Intellectual Property
- We reserve the property, intellectual property and trademark rights to our samples, drawings, calculations and other documents disclosed to the Purchaser. These may only be used for the purposes for which we have provided them and may not be rendered accessible to third parties without our express consent.
- The Purchaser must ensure that the execution of the order does not violate the rights of third parties, especially any third-party copyrights and intellectual property rights. The Purchaser shall fully indemnify us against all third-party claims filed against us in this context due to the execution of an order placed by the Purchaser.
§ 4 Delivery, Delivery Deadlines and Default
- Unless contractually agreed otherwise, we shall deliver the Good by sending it to the delivery address provided by the Purchaser. We reserve the right to carry out partial delivery if this appears reasonable and advantageous for prompt completion of the order. Any special methods of delivery requested by the Purchaser shall be charged separately after being agreed.
- Delivery deadlines indicated by us shall be non-binding unless, in exceptional cases, we issue a binding promise to meet the delivery deadline in writing. The seller ships Goods that are in stock within three working days. If the Good is not in stock when the order is placed, we shall endeavour to deliver it as quickly as possible.
- If non-adherence to a delivery or performance deadline is a result of force majeure, industrial action, unforeseeable obstacles or other circumstances for which we are not responsible (unavailability of the service), the deadline shall be reasonably extended. We shall immediately inform the Purchaser of this and indicate the new probable delivery deadline at the same time. If the service is unavailable even within the new delivery deadline, we shall be entitled to withdraw from the Agreement either fully or in part; any consideration provided by the Purchaser shall be immediately refunded. In this sense, the service can be considered unavailable if, in particular, we are not punctually supplied by our suppliers and a congruent covering transaction was concluded, we are not culpable and we were not obliged to procure the Goods.
- If we should default on delivery for reasons for which we are responsible, the Purchaser shall be entitled to demand compensation for damage caused by culpable default at a fixed rate of 3% of the value of the Goods to be delivered for each full week in which we are in default, up to a maximum of 10% of the value of the Goods to be delivered. No further claims for damage caused by default may be brought. However, if the default is a result of intent or gross negligence or if it represents a breach of an essential contractual duty, the statutory liability provisions shall apply. This limitation of liability shall not apply if a sale to be performed at a fixed point in time was expressly agreed or if the Purchaser can claim that its interest in the fulfilment of the Agreement has ceased to exist due to the default for which we are responsible. In the event of a default, the Purchaser must set us a reasonable performance deadline with consideration for the statutory exceptional cases. If we should fail to meet this deadline, the Purchaser shall be entitled to withdraw from the order in accordance with the statutory provisions. Upon expiry of the subsequent deadline, we shall be released from our delivery obligation if, during the subsequent delivery deadline, we called on the Purchaser to issue a statement on whether or not it wishes to insist on fulfilment of the Agreement and the Purchaser did not immediately respond.
§ 5 Default in Acceptance
- If the Purchaser should default in declaring acceptance or fail to cooperate, or if our delivery should be delayed for reasons for which the Purchaser is responsible, we shall be entitled to demand compensation for the resulting damage and additional expenditure (e.g. storage costs). In this regard, we shall charge a fixed rate of compensation of €100 per calendar day, beginning with the delivery deadline or – if there is no delivery deadline – upon issuance of the notice that the Good is ready to be shipped.
- We are entitled to provide evidence of more extensive damage and our statutory rights (especially to the reimbursement of additional expenditure, reasonable compensation and termination) remain unaffected; however, the fixed compensation is to be counted towards further pecuniary claims.
- The Purchaser may provide evidence that we have suffered less damage or no damage at all.
§ 6 Transfer of Risk
- For a sale by delivery, the risk of accidental destruction or degradation of the product/workpiece shall transfer to the Purchaser upon shipment to the carrier, freight forwarder or other party engaged to carry out delivery.
- If delivery ‘ex works’ is agreed (i.e. if the Purchaser collects the products/workpieces from us), the risk of accidental destruction or degradation of the product/workpiece shall transfer to the Purchaser when the Good is transferred to the Purchaser.
- If the Purchaser defaults in acceptance, this shall also count as a transfer of the Good to the Purchaser.
§ 7 Prices and Conditions of Payment
- The prices applicable on the date of the order shall be authoritative.
- Our prices do not include VAT; this is indicated separately.
- Our prices also do not include delivery or shipping costs. Unless expressly agreed otherwise, our prices are ex works, or ex warehouse in the case of deliveries, do not include packaging or insurance costs and, otherwise, include free delivery to the location of use which must be accessible by lorry. For rail transport, the prices are free on rail to our loading point. The Purchaser must bear the costs of any desired transport insurance. A fixed rate of transport costs – plus a fixed warehouse surcharge for deliveries from foreign warehouses – shall apply unless we issue an invoice for the actual transport costs accrued.
- We shall only charge for packaging if the Goods are shipped in transport boxes provided by us or if the Purchaser requests special packaging. If our transport boxes are returned free of charge and free from defects within two months, the amount invoiced for them shall be credited to the Purchaser. If we use containers loaned to us by a third party, the Purchaser shall bear the freight costs and we shall bear the rental costs.
- The agreed purchase price is payable
- within 10 days of delivery with a 4% quick payment discount;
- from the 11th to the 30th day after delivery with a 2.25% discount;
- from the 31st to the 60th day after delivery in full.
- Receipt of the payment in our account shall be definitive in terms of meeting the discount eligibility deadlines.
- Payments shall always be assigned to the oldest accounts payable plus the accrued default interest.(10) We are entitled to assign our claims for payment (e.g. to a factor).
§ 8 Default in Payment
- The Purchaser shall enter default in payment on the 61st day after delivery of the Goods without being granted a subsequent deadline. Whilst in default, the Purchaser must pay interest on its debt at a rate of 8% above the base interest rate. If the Purchaser defaults in payment, the seller shall be entitled to withdraw from the Agreement and recall any delivered Goods.
- We shall not be obliged to deliver any more Goods from any ongoing contracts until all invoice amounts, including default interest, are paid in full. If the Purchaser defaults on a mature payment or if its financial circumstances should suffer a substantial deterioration, we shall be entitled to demand payment in cash – waiving the payment deadline – before shipping Goods as part of outstanding deliveries from any ongoing contracts.
- The Purchaser shall only be entitled to offset or refuse performance in so far as its claim is undisputed or has been recognised by final judgment.
§ 9 Retention of Title
- The Good sold shall remain our property until the settlement of all present and future claims arising from this Agreement. The successful redemption of bills and cheques shall count as payment.
- Any processing or reworking of the products shall be deemed to have been carried out on our behalf. If the products are combined or mixed with third-party items, we shall be entitled to proportional joint ownership equal to the ratio between our products and the other items used by the Purchaser on the date of the combination or mixture. If the Purchaser acquires sole ownership of the new item, it hereby grants joint ownership of the item equal to the ratio between the invoice value of our products and the value of the new item.
- Until cancellation, the Purchaser may re-sell Goods that are our property or joint property in the course of normal business; however, the Purchaser may not pledge them or provide them as security. If the Purchaser sells our products or its own goods in which our products are integrated without receiving the full purchase price in advance or in instalments in exchange for transferring the item of sale, the Purchaser undertakes to agree a retention of title with its customer in accordance with these provisions.
- The Purchaser hereby assigns its claims arising from this re-sale and its rights from the agreed retention of title to us. At our request, the Purchaser shall be obliged to inform its customer of the assignment and provide us with the necessary information, or surrender the necessary documents, to allow us to assert our rights against the customer of the Purchaser. In the event of default in payment, other major contractual violations or a serious deterioration in the financial circumstances of the Purchaser, at our request the Purchaser shall be obliged to immediately surrender all products to which we have joint ownership rights to us at its own expense.
- If the value of the securities provided under the retention of title should exceed our claims from this Agreement by more than 20% in total, at the request of the Purchaser we shall release its choice of securities.
§ 10 Other Liability
- Unless provided for otherwise in these GTC, including the following provisions, in the event of a breach of contractual and non-contractual duties we shall be liable under the applicable statutory provisions.
- Regardless of the legal grounds, we shall only be liable to pay damages in cases of intent and gross negligence. We shall only be liable for ordinary negligence
- for damage resulting from injury to life, limb or health,
- for damage resulting from the breach of a material contractual duty (a duty which must be fulfilled in order to permit the due performance of the Agreement and on adherence to which the contractual partner normally can and does rely); in this case, however, our liability shall be limited to paying compensation for the typical foreseeable damage.
- The limitations of liability in paragraph 2 shall not apply if we wilfully conceal a defect or if we issue a guarantee in connection with the nature of the Goods. The same applies to claims of the Purchaser under the German product liability act (ProdHaftG).
- The Purchaser can only withdraw from or terminate this Agreement due to a breach of duty – unless it is a defect – if we are responsible for the breach. The Purchaser does not have a free right of termination (especially under Sections 649 and 651 BGB). Otherwise, the statutory requirements and legal consequences shall apply.
§ 11 Duty to Inspect and Report Defects
The Purchaser must immediately inspect incoming Goods upon receiving them. The inspection is to concern defects and the nature of the Goods. Any defects are to be reported immediately. Reports of defects are to be made in writing. If no report is filed, or if a report is filed late, the Goods shall be deemed accepted. In this case, the Purchaser shall not be entitled to guarantee claims or other claims. If defects should appear at a later date, these must be reported to us immediately; otherwise, the Good shall also be deemed accepted. The Purchaser must permit us to inspect the Good which has been reported as defective. If the Purchaser culpably fails to do so, the Purchaser shall have no guarantee claims or other claims on the basis of this defect.
§ 12 Claims for Defects of the Purchaser
- Damage caused by improper or non-contractual treatment of the items by the Purchaser, especially when unpacking or storing the items, shall not give rise to any guarantee claims. Additionally, typical or small, technically unavoidable deviations in quality, colour, width, weight, equipment or design do not represent defects.
- If the delivered Good should contain a defect which existed on the date of the transfer of risk and which was duly reported in accordance with section 11, we are to be given the opportunity to either render a supplementary performance or a replacement delivery, at our own discretion, within a reasonable deadline.
- If supplementary performance should fail, instead of the performance the Purchaser can demand compensation or a reduction in price, or withdraw from the Agreement. If the Purchaser opts to demand compensation instead of the performance, the limitations of liability set out in section 10 paragraphs 1 and 2 shall apply. The Purchaser shall not be entitled to withdraw in the event of merely negligible defects.
- Claims of the Purchaser due to the necessary expenses for the supplementary performance, especially transport, labour and material costs, shall be excluded if the expenses increase due to the delivered Good having subsequently been brought to a different location than the location of the Purchaser, unless the movement of the Good represents its intended usage.
- Rights of recourse of the Purchaser against us under Section 478 BGB shall only exist in so far as the Purchaser has not concluded any agreements with its customer beyond the mandatory claims for defects.
- In the event of reported defects, payments of the Purchaser may only be withheld to a proportional extent to the defects and only in so far as there is no doubt as to the legitimacy of the report of defects. If the report of defects proves to be wrong, we shall be entitled to demand the reimbursement of the expenses accrued by the Purchaser.
- Claims for defects shall become time-barred within twelve (12) months. This will not apply if the law provides for longer periods, i.e. Sections 438(1) no 2, 479(1) and 634a(1) no 2 BGB, as well as in cases of injury to life, limb or health, an intentional or grossly negligent breach of duty on the part of the supplier and the wilful concealment of a defect. This does not affect the statutory provisions concerning the suspension, suspension of the expiration and the resumption of deadlines prescribed by the statute of limitations.
§ 13 Confidentiality Obligation
- The Purchaser hereby undertakes to carefully take all reasonable precautions to prevent the trade secrets of which it becomes aware and the data which it receives through the business relationship with us from being disclosed to third parties, either by itself or its employees, and to protect and store them in such a way that they cannot be accessed or misused by unauthorised parties. In this context, ‘trade secrets’ include, in particular, information, order quantities, sales figures, business data analyses, plan and budget figures, indications of future trends in planning documents or private fashion shows, drafts and all similar internal and as yet unpublished information which is not intended for competitors or other third parties. Additionally, the Purchaser may not use these trade secrets for its own business purposes outside of the business relationship with the seller. Furthermore, the confidentiality obligation shall continue to apply after the termination of the business relationship with the seller.
- We reserve the property and intellectual property rights to all documents sent to the Purchaser as part of the placement of the order, e.g. calculations and drawings. These documents may not be rendered accessible to third parties unless we grant our explicit written consent to the Purchaser. If we should choose not to accept the offer of the Purchaser, these documents must be sent back to us immediately.
- The Purchaser undertakes to have its employees undertake to adhere to this confidentiality obligation and to bind them to Section 5 of the German federal data protection act (BDSG).
§ 14 Data Protection, Right to Information
- The data of the Purchaser shall only be used to process and carry out the orders and the contract. We shall store and process all the data of the Purchaser in accordance with the applicable regulations of the German federal data protection act (BDSG) and the German broadcast media act (TMG).
- The Purchaser is entitled to revoke its consent to the storage of its personal data at any time, with future effect. In this case, we shall be obliged to immediately delete the personal data of the Purchaser. With regard to ongoing orders, the data shall be deleted once the order process is complete.
§ 15 Final Provisions
- This Agreement and all legal relationships between the parties are subject to the law of the Federal Republic of Germany with the exception of the UN Convention on Contracts for the International Sale of Goods (CISG).
- Unless stated otherwise in the order confirmation, the place of fulfilment and exclusive jurisdiction for all disputes arising from this Agreement shall be our registered offices. This shall also apply if the Purchaser has no place of general jurisdiction in Germany or if its abode or habitual residence are unknown when the action is filed.
- If any provision of these GTC should be ineffective, this shall not affect the remaining provisions.