Standard Terms and Conditions of Business for wholesale
of Marlino GmbH, Frankfurter Ring 247, 80807 München, Germany, represented by Managing Director Dirk Nienaber, Munich District Court HRB 111121, fax: +49 89 452058811, e-mail: firstname.lastname@example.org; VAT number: DE174828969.
I. Conclusion of contract, terms of agreement
1. These Standard Terms and Conditions of Business apply to all transactions with customers who are business people as defined in § 14 BGB.
2. Our offers, deliveries and services are subject solely to these Standard Terms and Conditions of Business. The customer’s standard terms and conditions of business are not an integral part of the contract even if we do not expressly object to them.
3. Our offers are non-binding.
4. The customer is bound by his purchase order until it is cancelled in writing. After end of sales period (Mid-March for winter deliveries and mid-September for summer deliveries) and placement pf bulk production the customer is not allowed to cancel the order.
5. The cancellation of a binding or confirmed purchase order requires our written approval. In every case, we charge a cancellation fee of 10% of the respective order value.
6. Contracts materialise through our confirmation of order in writing or by delivery of the merchandise ordered.
7. Illustrations and sample merchandise as well as descriptions of the products in offers, sample books, price-lists and other documents are only to be understood as approximate; they are not a guarantee of the quality of the merchandise unless there is an explicit guarantee in writing.
8. We reserve property rights and copyright to illustrations, sample merchandise, sample books, sketches, drawings and comparable items. The customer is allowed to use these items and our intellectual property they contain only within the framework of the business relations with us, he is not allowed to make them available to third parties without our prior approval and must return them to us promptly upon request.
9. The customer is obliged when advertising our merchandise under the labels of Marlino GmbH to obtain our written approval beforehand. If the customer uses a visual portrayal of our labels in his advertising, he must obtain our consent in writing.
II. Credit insurance / Factoring / Prepayment
We work together with a credit insurance/factoring company that insures our customers and purchases our accounts receivable.
a) We do not confirm our customers’ purchase orders at the otherwise usual terms of payment or terms offered with the purchase order if our credit insurance/factoring company does not insure or purchase or only partly insures or purchases accounts receivable from the customer. We will inform the customer immediately. In the event of non-insurance or only partial insurance or non-purchase or only partial purchase by the credit insurance/factoring company, the customer declares already with the purchase order that he agrees to our demanding from him the following with regard to the entire purchase price: 30% of the purchase price within 30 days of the confirmation of order; 70% seven (7) days before the dispatch date communicated by us.
b) Should we learn between the conclusion of the contract and the delivery of the merchandise that our credit insurance/factoring company is not or is only partly insuring/purchasing accounts receivable from the customer, because of the risk to our receivables this poses we are entitled to demand prepayment as follows: 30% of the purchase price immediately, albeit not before the end of 30 days from the confirmation of order; 70% seven (7) days before the dispatch date communicated by us.
III. Prices, payments
1. Our prices are quoted as net prices plus Value Added Tax at the statutory rate.
2. EU & Swiss: The prices quoted are from warehouse Munich. For deliveries in third countries outside EU the customer bears transport costs and all customs duties and border taxes.
3. Our invoices are payable from the invoice date as follows: 10 days with 4% discount / 60 days net.
4. If in the cases of II a) and II b) the customer does not make the prepayment by the deadlines stated, we are entitled without further ado to rescind the contract and demand compensation for non-fulfilment. Any initial payment on account by the customer in the amount of 30% is not to be returned by us; instead it is credited as flat-rate minimum damages to our claim for compensation.
5. If the customer is wholly or partly in default with an obligation to pay for more than 30 days, all receivables arising from the business relations become due immediately.
IV. Delivery dates
1. Our delivery periods are as follows: for the winter season from June to September and for the summer season from December to March.
2. A customer-requested fixed delivery date only becomes an integral part of the contract if we confirm the delivery date in writing.
3. Unforeseen events beyond our control (e.g. (raw) material bottlenecks, delays in the delivery of (raw) material, delayed delivery from our suppliers, import difficulties, disruptions to operations or transportation, force majeure), prolong the delivery period accordingly. If we cannot provide our services even after a reasonable extension, both the customer and we are entitled to rescind the contract. In this case any customer claims for damages are excluded.
4. If we are unable to comply with a fixed delivery date due to reasons for which we are responsible, the customer must set us an extension of at least 10 days for subsequent delivery to no avail before he may rescind the contract and/or claim damages.
5. We are entitled to make partial deliveries.
V. Dispatch and transfer of risk
1. Risk is transferred to the customer as soon as the merchandise is handed over from our premises or distribution centre to a forwarder or freight carrier. The same applies if we undertake other services such as carriage-free consignment, transportation or similar.
VI. Reservation of property rights
1. The merchandise delivered remains our property (goods subject to reservation) until all payment claims arising from the entire business relations have been satisfied in full.
2. The customer is not permitted to pledge or assign the goods subject to reservation by way of security.
3. The customer assigns to us beforehand all receivables arising from the resale of the goods subject to reservation as well as any claims for compensation relating to the goods subject to reservation.
4. The customer is entitled to resell the goods subject to reservation only under the following conditions: (a) the goods subject to reservation may only be sold in the regular course of business and at standard market prices; (b) the goods subject to reservation may only be sold under the reservation of ownership; (c) the customer is not permitted to default on his obligations to pay the supplier.
5. The customer is required to accept for our account payments from his customers for the goods subject to reservation and to use them primarily to settle our claims due.
6. The customer is required to do his utmost to avert pledging, seizure or other third-party attachment of the goods subject to reservation and to notify us promptly thereof.
7. In the case of conduct in breach of the customer’s duties jeopardising our security interest, in particular default on payment and failure to comply with the terms and conditions stipulated in the above paragraphs, the customer loses without further ado any entitlement whatsoever to dispose of the goods subject to reservation and we are entitled to demand the prompt return of the goods subject to reservation at the customer’s expense and also without cancelling the contract, or to remove the goods from the customer’s business premises and/or warehouse during normal business hours.
8. If the value of our securities under this clause VI exceeds the amount of secured receivables by more than twenty (20) per cent, upon the written request of the customer we will release securities of our choice to the corresponding extent.
VII. Warranty; liability
1. Some of our products are made out of animal fur skin. Although the finest quality is used, with fur the properties of the hair (wool and skin side) cannot be totally excluded. Hair breakage and wear to the fur cannot be regarded as defects.
2. The customer must inspect the delivered merchandise with high carefulness in a reasonable short period of time after arrival. Any claim must be communicated immediately by written. Latest after one-month time the customer will lose the right to claim. A claim must be in reasonable definition and description. Claims caused by consumers of the customer are not valid.
3. The customer has the statutory rights relating to subsequent performance, rescission and reduction.
4. There is a limitation period of one (1) year for warranty claims that commences when the item is delivered to the customer.
5. Our liability is unlimited if the customer’s loss or damage is due to an intentional or grossly negligent breach of duty by us or a legal representative or agent of ours.
6. We are further liable for ordinarily negligent breach of cardinal duties, the breach of which jeopardises the achievement of the purpose of the contract, or for the breach of duties on whose very performance the due and proper implementation of the contract is contingent and in whose fulfilment the customer regularly trusts. In this case we are liable, however, only for foreseeable, contractually typical loss or damage. We are not liable for the ordinary negligent breach of duties other than those stated in the preceding sentences.
7. The limitations on liability in paragraphs 5 and 6 do not apply in the case of injury to life, limb and health, to a defect after the acceptance of a guarantee for the quality of the product, and in the event of fraudulently concealed defects. Liability under the Product Liability Act remains unaffected.
8. If our liability is excluded or limited, this also applies to the personal liability of employees, representatives and agents of ours.
9. We accept no liability for the merchandise supplied breaching third-party rights of which we are not aware at the time of delivery, unless the lack of awareness is due to gross negligence.
VIII. Choice of law, place of performance, place of jurisdiction
1. The law of the Federal Republic of Germany applies to the exclusion of the UN CISG.
2. The place of performance for all contractual claims is Munich.
3. The place of jurisdiction is Munich. We are, however, entitled to take the customer to court at his place of business.