CONDITIONS OF USE
GENERAL OBSERVATIONS
These Terms and Conditions shall apply to all the products supplied, services delivered, and offers made by us to our commercial customers. Any agreements deviating from these Terms and Conditions of Sales and Delivery shall be null and void unless explicitly agreed to by us in writing.
CONCLUSIONS OF A CONTRACT
An order placed by a customer shall be considered a binding offer. We shall have the right to accept this offer within three weeks by sending out an order confirmation or the products ordered. We reserve the right to make modifications to the products supplied or services offered in as much as these can be reasonably expected to be acceptable to the customer. The customer warrants that he has obtained all registrations, permissions and consents required for the import, export, distribution and/or use of our products and/or any actions related thereto in his country and the country of destination. The customer also warrants that he will only import, advertise, distribute or otherwise use our products to the extent this is permitted under the applicable laws and regulations.
TERMS OF DELIVERY, RISK OF DELIVERY
Except as otherwise agreed upon, the general delivery period shall be three weeks, unless inquiries into the customer’s creditworthiness deemed require an extension of the delivery period. The fulfilment of our delivery obligations shall be contingent on the customer’s timely and adequate fulfilment of his obligations. Partial deliveries are permitted. If standard trade terms under the INCOTERMS are agreed upon (e. g. »EXW«, »CIF«), the most recent version of the INCOTERMS in force at the date of conclusion of the contract applies. The applicable INCOTERMS supersede contradictory terms contained in these Terms and Conditions of Sale and Delivery. Unless otherwise agreed upon, deliveries will be made EXW (»ex works«).
TERMS OF PAYMENT/PRICES
Our invoices shall be due and payable in full fourteen (14) days after the invoice date unless otherwise explicitly stated on our order confirmation. We are entitled to request pre-payments. The customer shall have the right to set off counterclaims only if these have been determined by a court of law, are undisputed, or have been accepted by us in writing. The customer shall be able to execute any right of retention only in as much as the customer’s counterclaim is based on the same contract or contractual relationship. Unless otherwise agreed upon, all our prices are quoted on a net basis and are subject to shipping and handling charges and statutory value added taxes, if applicable.
RESCISSION
We shall have the right to rescind our contractual obligations and to cancel the Agreement in the event that the customer has suspended payments, has protested against a bill of exchange/draft, or has experienced a deterioration in credit and confidence rating or other events that might put the proper settlement of the business at risk, unless the customer agrees to performance upon tender of counter performance or provision of security, if so requested. Other rights and remedies remain unaffected. If the products ordered are unavailable through no fault on our part, we also have the right to rescind our contractual obligations. We undertake to inform the customer about the unavailability without delay and to return any payment already made with regard to the unavailable products.
WARRANTY AGAINST DEFECTS
Within the statute of limitations for warranty claims, any defects shall be remedied by us on proper notification by the customer. This shall be effected, at our sole option, of repairing or replacing the defective products free of charge. If the defect cannot be repaired or the defective products cannot be replaced within a reasonable period of time or if the repair or replacement should fail for any other reason, the customer may, at his option, request an appropriate price reduction or rescind the contract solely as it relates to the defective delivery. The repair or replacement shall not be considered failed unless we have been given sufficient notice to effect the repair or replacement and such is not effected successfully or if repair and replacement are impossible or if we refuse or unreasonably delay repair or replacement. Any warranty shall be null and void if the customer modifies or allows a third party to modify the products, unless the customer can prove that the defect in question has not been caused by the modifications effected by him or a third party. The same shall be true in the event that the customer uses the products under circumstances other than those explicitly approved for use. The statute of limitation for defects is one year from the date of delivery. The statute of limitation under § 479 German Civil Code remains unaffected. The validity of any claims on the part of the customer shall in any case be contingent on the customer’s having duly fulfilled his obligation to inspect the merchandise and to notify us of any defects, as required by Section 377 of the German Commercial Code.
WARRANTY AGAINST DEFECTS OF TITLE
We shall defend the customer against any claim made within the statute of limitations (Para. 6.5) arising from a violation of any industrial property rights or copyright by the merchandise as used pursuant to the specifications of the purchasing contract. We shall be liable for any damages due to defects of title – including but not limited to costs and damages determined by a court of law – only if the customer has informed us of such claims in writing, without delay, and has reserved the right, on our behalf, to undertake any defensive action or to enter into any negotiations for settlement.If claims against the customer pursuant to Subparagraph 1 of this Section are made or expected, we shall have the right to modify or replace the merchandise, at our own cost, to the extent these can be reasonably expected to be acceptable to the customer. If this is not possible and if obtaining rights of use is not possible at reasonable cost, the customer’s rights shall be as determined by the provisions of Section 6.2. We shall be free of any obligations if the claims pursuant to Subparagraph 1 of this Section refer to programs, data or any other material provided by the customer or if they are the merchandise not being used in its valid, original form or under other operational condition than those agreed upon.
LIMITATIONS OF LIABILITY
Without respect to the legal grounds, we may only be held liable for damages we caused
a) by a negligent or intentional violation of essential contractual obligations or in a way that endangers achieving the contractual purpose, or
b) by gross negligence or wilful misconduct.
Should we be held liable pursuant to Subparagraph 8.1 a) for a violation of an essential contractual obligation without a showing of gross negligence or willful misconduct, its liability is limited to the damage reasonably foreseeable at the time of entering into the Agreement. The limitation of liability set forth in Subparagraph 8.2 also applies to damages caused by gross negligence or wilful misconduct of our employees or agents other than managing directors or executive officers. The limitations of liability pursuant to Subparagraphs 8.1 through 8.4 apply accordingly in favour of our employees and agents. Our statutory liability for personal injury or loss of life and our liability pursuant to § 1 and § 4 of the German Product Liability Act remains unaffected.
ADVERTISING
All images contained in our advertising material represent the depicted products as of the date of going to print or the date of first publication of the respective advertisement. We reserve the right to make technical and other modifications. Images depicting our products in advertising may include special editions or accessories not contained in the basic price of the standard edition.
RETENTION OF TITLE
We retain title to the products until all amounts due to us within our business relationship with the customer have been received in full. In the event of attachment or seizure or other action on the part of others, the customer shall be obligated to immediately notify us in writing in order to enable us to institute third-party proceedings. To the extent that the third party is not in a position to reimburse us for the costs of legal action in court and out of court, the customer shall be liable for this reimbursement. By concluding the Agreement, the customer assign to us all claims, in the amount of the final invoice including VAT, if applicable, arising from any resale against his customers or any third party, independently of whether or not this resale was permitted in the case at hand. The customer continues to be entitled to collect the assigned amounts from his claim, notwithstanding, however, our right to collect the assigned amounts ourselves. We undertake, however, not to collect such amounts for as long as the customer is current with us regarding his payment obligations from the amounts collected and, in particular, as long as no insolvency proceedings have been commenced or payments suspended. Once that is the case, however, we shall have the right to demand that the customer inform us about the assigned claims and the debtors, giving us all the information required for collecting the assigned amounts, handing over all the requisite documents, and notifying the debtors (third parties) of the assignment. Any processing or modification of the products shall be effected on our behalf. If a product is processed together with other products that are not our property, we shall obtain partial ownership in the resulting new products at a ratio corresponding to the value of the products relative to other processed items at the time of processing. The same rules shall apply for the products created by processing as for the products delivered under reservation of the right of ownership.We undertake to release any securities due us, at the customer’s request, to the extent that the value of the securities exceeds the claims to be secured by more than ten per cent (10 %). The choice of securities to be released shall be in our sole discretion.
IMAGE MATERIAL
Image material is only provided for viewing. All image material remains the property of Market Grounds and must be deleted from electronic memories within one month maximum, if not used. Any use other than the viewing of the image material requires the prior (written) consent of Market Grounds. The release of image material only authorises you to use it for the specific purpose as stated. The image material may not be passed on to third parties. The consent given by Market Grounds for the use of the image material does not include the confirmation that persons who are depicted in the material or the proprietors of the rights to depicted works of art or the proprietors of trademark rights and other property rights have consented to the publication of their works, in particular to the use of same within the range of advertising. The customer shall be responsible for obtaining the consent of any third party that may be required on an individual basis. The customer must respect the personal rights, copyrights, trademark and any other property rights of depicted persons, works, objects or trademarks in compliance with the provisions of the country in which the material will be used. This shall not apply insofar as Market Grounds has explicitly confirmed in writing that the required consent, respectively rights, has / have been obtained. If the customer uses the image material, he/she must hold Market Grounds harmless from and against the utilisation of any third parties and bear the legal consequences of a rights infringement internally.
GOVERNING LAW, PLACE OF JURISDICTION
The contractual relationship with our customers shall be governed exclusively by German law. The United Nations Convention on Contracts for the International Sale of Goods shall not be applied. To the extent that German conflict-of-law regulations prevent the exclusion of certain provisions of other jurisdictions by contractual agreement, these provisions shall remain unaffected. The place of jurisdiction is our place of business. However, we reserve the right to take any legal recourse against our customers at our customers’ place of business.