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Terms of Service

 

General Terms and Conditions of Trade of marketing-displays Produktionsgesellschaft für Werbe- und Verkaufsförderungssysteme mbH & Co. KG 50767 Köln  


1. Generally

For orders placed with marketing-displays GmbH & Co KG – subsequently called “md” – the following General Terms and Conditions of Trade shall apply exclusively. That shall also be valid for orders to be executed at short notice which md usually neither confirms explicitly nor in writing as far as these terms are known to the customer due to existing or previous business connections. All agreements made between md and the customer with the aim of executing this contract are contained in writing in this contract. Entrepreneur in the sense of these General Terms and Conditions of Trade is anyone who is entrepreneur in the sense of sections 14, 310 BGB (German Civil Code). 

2. Placing of orders, delivery periods

2.1 The offers of md are not binding. They shall become binding through the confirmation of order by md or delivery of the goods. md reserves the right to alter the construction of the product due to further technical development. 

2.2 The delivery periods mentioned by md are approximate delivery dates. The beginning of the delivery period declared by md shall require the clarification of all technical questions. Compliance with the delivery periods shall require fulfilment of all obligations of the customer on time and in proper form (including obligations to co-operate, e.g. handover of artworks). A day of delivery exceptionally agreed upon to be binding is complied with if the consignment has left the factory before its expiration or if the customer has been informed of md’s willingness to deliver. All deliveries of md are subject to md itself being delivered in proper form and on time, provided that md is not responsible for the non-delivery. In case of non-availability or only partial availability the customer shall be informed immediately; the consideration shall be refunded without delay. Should compliance with the delivery periods be delayed due to force majeure or operating trouble caused by blameless or inevitable incidents, md shall have the right to defer the delivery for the time of the hindrance if the customer is an entrepreneur and is informed accordingly. It is irrelevant whether these circumstances happen to md or its suppliers and sub-suppliers. Should the delivery period consequently be extended for more than 3 months, the customer shall have the right to withdraw from the contract in writing. md shall have the same right. In all other cases of non-compliance with the delivery periods, the customer shall be entitled to withdraw from the contract with regard to all deliveries not declared ready for consignment at the time of expiration after having fixed a final deadline of at least 4 weeks, in case of the customer not being an entrepreneur, after having fixed a final deadline of at least 2 weeks.

2.3md shall be entitled to partial delivery unless not agreed upon otherwise in writing. 

2.4 In case of non-standard articles md reserves the right of 10% over- / underdelivery. 

2.5 The customer shall to take possession of goods ordered on call within three months from the confirmation of the order or within four weeks after the several call dates agreed upon. Should the orderer not take possession of the goods within these periods, the purchase price for the goods produced by then shall become due at the expiry of the period. The orderer shall fall into default of acceptance and debtor’s delay without any further declaration being necessary at the latest at the expiry of the aforementioned periods.


3. Passing of risk and consignment

The deliveries of md shall be made ex works. The costs of packaging and consignment shall be borne by the customer. The risk shall pass to the customer at the moment in which the goods are handed over to the forwarder / freight carrier, at the latest, however, at the time of leaving the factory or storage. Default of acceptance of the customer shall be on a par with the handover. Should consignment of the goods by delayed by circumstances for which the customer is responsible, the risk shall pass to him once the goods are ready for delivery. md chooses the way of consignment at its discretion without being obliged to the cheapest or fastest way of consignment, provided that the customer has not demanded a certain type of consignment. md is not obliged to insure the goods for consignment. 


4. Prices / Terms of payment

4.1List prices of md are without obligation and not binding. Prices agreed upon are ex works plus value added tax. Costs for an alteration of the product carried out after placement of the order on demand of the customer shall be charged to the customer.

4.2 md reserves the right to change the prices accordingly in cases of contracts with delivery periods of more than 4 months if there should occur cost reductions or cost increases after the conclusion of the contract, in particular due to collective agreements or changes of the material price as well as public or other duties. On demand, md shall prove them to the customer.

4.3 The prices agreed upon shall be due for payment, in each case calculated from the invoice date (= day of consignment) within 10 days with a 2% discount or within 30 days net (without deduction). No discount shall be subtracted for additional costs such as freights, assembly etc. md reserves the right to agree upon payments in advance, down payments or part payments. Cheques and acceptance bills shall only be accepted on account of performance. Discount and collecting charges shall be charged to the customer.

4.4 The customer shall fall into default of payment 30 days after the invoice date (= date of consignment) without reminder. Thereafter the customer owes to md default interest amounting to 8 percentage points above the base lending rate. Should the customer be a consumer in the sense of section 13 BGB (German Civil Code) he owes default interest amounting to 5 percentage points above the base lending rate. In addition, the legal provisions concerning default of payment and its consequences shall apply, also with regard to interest.

4.5  Should there become known circumstances after the contract has been concluded which are able to decrease the credit-worthiness of the customer and to endanger the claims of md against the customer, all claims shall become due immediately irrespective of payment targets granted or the duration of acceptance bills that might have been accepted. Such circumstances shall also entitle md to make existing deliveries only against the furnishment of security or to withdraw from the contract and / or to claim damages. 

4.6 The customer may only set off against the payment claim of md with claims that are ascertained in a legally binding way, undisputed or recognized by md in writing. Moreover, the customer shall only beentitled to exercise a right of retention if his counterclaim rests in the same contractual relationship. 


5. Warrantee / Liability for other reasons

5.1 In case of a mutual commercial transaction, the assertion of defects of quality shall require that the customer properly fulfils his responsibility of examination and objection according to sections 377, 378 HGB (German Commercial Code). Should the customer not be an entrepreneur the assertion of defects of quality shall require that the customer indicates obvious defects within two weeks after receiving the goods in writing. The customer who is an entrepreneur also shall also particularly observe his duty of objection towards the forwarder / freight carrier. Should the goods or the packaging be damaged at the time of arrival, the customer shall obtain written confirmation for that from the forwarder / freight carrier and make it available to md without delay.

5.2 Should there be a defect of quality or title that md is responsible for according to the legal provisions, md shall in the first place – in case of the customer being an entrepreneur – be entitled to remove the defect or to make a compensation delivery at its own option. Should the removal of the defect / compensation delivery fail the customer shall be able elect to demand withdrawal, diminuition of the purchase price or – according to the subsequent agreements – to claim damages. Defective goods shall be returned before the compensation delivery unless md abstains from that in writing.

5.3 md shall be liable for defects of quality or title but also for other breaches of duty according to the following principles:

  •  md shall be liable according to the legal provisions provided that the customer claims damages which are based on intent or gross negligence including intent or gross negligence of agents or auxiliary persons. Should the customer be an entrepreneur and md not be accused of an intentional breach of contract, its liability for damages is limited to the damages that were predictable and typically occur.
  • md shall furthermore be liable according to the legal provisions provided that it culpably breaches an essential contractual duty; in that case the liability for damages is also limited to the damages that were predictable and typically occur.

5.4 Unless provided for otherwise hereinbefore or in Number 5.7. liability shall be excluded. In particular, there shall not come into consideration a further liability of md for damages – irrespective of the legal nature of the claim made. The limitation of liability shall also apply as far as the customer instead of claiming damages claims compensation for useless expenditures instead of the performance. As far as the liability for damages is excluded or limited towards md that shall also apply with regard to the personal liability for damages of employees, jobholders, collaborators, agents and auxiliary persons of md.

5.5 Every delivery or partial delivery shall be considered an independent commercial transaction as far as complaints, deficiency claims and warrantee rights are concerned. Defects of a partial delivery shall be without legal consequences for other deliveries.

5.6 Claims of the customer for defects shall become statute-barred within one year after handover, unless md has kept silent about the defect with intent to deceive. Claims of the customer for defects kept silent about with intent to deceive as well as his rights because of other breaches of duty not committed with gross negligence or intention shall become statute-barred within one year as soon as the customer obtains knowledge of the circumstances founding the claim or the responsibility of md for keeping silent about the defects with intent to deceive or the breach of duty or would have obtained knowledge without gross negligence. Should the customer not be an entrepreneur the legal periods of limitation shall apply deviating from sentence 1 and sentence 2.

5.7 The liability for culpable violation of life, body or health shall not be affected by the aforementioned limitations of liability; that also applies to the obligatory liability according to the Produkthaftungsgesetzt (German Product Liability Code).


6. Retention of Title  

In case of customers that are no entrepreneurs, title to the goods shall remain vested in md until the price of the goods has been paid in full; otherwise title shall vest in md until the customer has paid all his obligations arising out of the existing business connection with md in full. That shall also apply to goods explicitly paid for by the customer. In case of a running account the retained title shall also secure the respective claim to the balance of md. To customers being entrepreneuers also the following shall apply: The customer shall be entitled to resell the goods subject to the retention of title in the ordinary course of business as long as he is not in default. In that case he shall be obliged to retain title to the goods subject to the title retention towards his customers until they have paid the purchase price in full. The customer may not carry out other dispositions, in particular pledgings or transfers by way of security, without explicit written consent of md. The customer hereby assigns to md all of his claims against his customers arising out of the sale of the goods subject to the retention of title – including all accessory rights – as security for all the claims that md has against him. The customer is authorized to collect the claims arising out of the resale that were assigned to md. Should the customer be in default, file for bankruptcy or bankruptcy proceedings be opened, md shall be entitled to withdraw the authorization und to demand that the customer discloses to it all the claims assigned and the respective debtor,to provide the information in this respect necessary for the collection, to hand over the corresponding documentation and to inform the debtors about the assignment. Should a customer of the customer insist upon a covenant not to assign, md shall be informed about that before the conclusion of the resale deal without delay. In case of the customer being unable to provide other sufficient security for the claims of md, md shall be entitled to forbid the resale of the goods delivered by it to customers insisting on covenants not to assign. On demand, the customer shall be obliged to inform md about the amount of goods subject to retention of title and about the claims assigned to md. Should third persons seize the goods subject to the title retention or the assigned claims, the purchaser shall inform md without delay and shall support md in the assertion of its rights. He shall on his part be obliged to use all necessary legal remedies in order to preserve the rights of md. As far as the third person is unable to refund to md the costs of its judicial and extrajudicial action, the customer shall be liable to md. Inasmuch as the realizable value of the security for md altogether exceeds the claim of md for more than 10%, md shall release the exceeding security on demand of the customer. md shall be entitled to choose the security to be released.


7. Copyright / comparable protective rights 

There exist copyrights or comparable protective rights in favour of md for the goods delivered and / or the concepts produced, samples, drawings as well as printing plates. If not explicitly agreed upon otherwise, the customer shall by this order neither directly nor indirectly be granted a licence or other right of use and enjoyment of the copyright respectively, the comparable protective rights. 


8. Place of Performance and Place of Jurisdiction

Place of Performance for all obligations arising out of this contractual relation (deliveries, performances, payments etc.) shall be Cologne. Exclusive Place of Jurisdiction for all disputes arising out of or in connection with this contractual relation between the parties shall be Cologne, if the customer is a merchant, juristic person under public law or a special fund under public law. German law shall be applied exclusively.


9. Miscellaneous 

9.1 Neither this order nor single claims arising out of it may be assigned or transferred to another person in whole or in part without our written consent. 

9.2Should a provision of these Terms and Conditions be invalid in whole or in part or become invalid in whole or in part, the validity of the remaining provisions shall not be affected by that. In that case the parties shall be obliged to agree upon a provision having a similar economical effect as the invalid one.

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