Terms and Conditions of Sale and Delivery

1.1These general terms and conditions of sale and delivery shall apply to all deliveries made and services provided by us to businesses.  
1.2They shall also apply to future deliveries made and services provided by us, even if they are not expressly agreed upon again.  
1.3The customer’s unconditional acceptance of our service/delivery shall also be regarded as an acknowledgement of our general terms and conditions of sale and delivery by the customer.  
1.4Any contrary and/or supplemental general terms and conditions of the customer shall not apply and are hereby explicitly rejected by us. They shall only apply if and to the extent that we expressly declare to have agreed to them or parts thereof.  
1.5The unconditional delivery and/or provision of services by us shall also not be regarded as an acknowledgement of any terms and conditions of the customer deviating from or supplementing these general terms and conditions of sale and delivery.  

2.Offer and conclusion of contract, right of representation  
Our offers are subject to change and are non-binding. Declarations of acceptance and all orders must receive our express confirmation to have any legal effect. This shall also apply to supplements, amendments or ancillary agreements. All details relating to measurements, weights or other technical data are only binding if and to the extent that we expressly designate them as binding.

3.1The prices specified in our order confirmation do not include the applicable statutory sales tax. In the absence of an express agreement to the contrary, our prices valid on the day of delivery shall apply.  
3.2Unless expressly agreed otherwise, the prices are ex works, including standard packaging, but excluding shipping costs, which shall be borne by the customer unless otherwise expressly agreed. Special packaging shall be invoiced separately or made available on a rental basis in return for a rental fee. The packaging must be returned to us no later than three months after the invoice date, carriage paid and in a good state of repair.  
3.3All taxes, customs and fees etc. that apply to deliveries outside Germany shall be borne by the customer.  

4.Shipping, delivery  
4.1The place of fulfilment for our deliveries is Walluf (Germany) or Wuppertal (Germany), depending on the warehouse from which the goods are delivered. Shipping takes place at the customer’s risk. The shipping method and route are chosen by us. If additional costs are incurred as a result of an express agreement pertaining to customer requirements, these shall be borne by the customer.  
4.2Partial deliveries are permissible, provided that they are reasonable for the customer.  
4.3Delivery dates are only binding when they have been expressly agreed upon. Delivery dates are deemed to have been met if, prior to the deadline, the delivery item has left the factory or we have indicated that the shipment is ready.  
4.4Compliance with agreed deadlines for deliveries/services requires the timely receipt of all documents to be provided by the customer, necessary permits and approvals, in particular those pertaining to plans, and compliance with the agreed payment terms (advance payments, for example) and other obligations by the customer. If these requirements are not fulfilled on time, the agreed delivery and performance deadlines shall be extended accordingly; this shall not apply if we are responsible for the delay.  
4.5If non-compliance with agreed deadlines is due to force majeure, for instance mobilisation, war, unrest or other similar events, such as strikes, lockouts, etc., the agreed deadlines shall be extended accordingly. The same applies if we ourselves have not been supplied on time or properly (the following applies for the agreed delivery dates: correct and timely delivery by own suppliers).  

5.Payment, interest on arrears, delay, offsetting and retention  
5.1Our invoices are due for payment without deductions immediately after receipt of the invoice, within the agreed deadlines from the invoice date and without express agreement of a deadline. We are entitled to charge interest at a rate of 5% from the due date onwards; we reserve the right to assert further claims. In the event of a default in payment, we are entitled to charge interest at a rate of nine percentage points above the relevant base interest rate. If we consent to the presentation of bills of exchange, the customer shall be responsible for any bank or discount charges.  
5.2In the event of any default in payment and reasonable doubt in relation to the solvency or creditworthiness of the customer, we are authorised, without prejudice to our other rights, to demand advance payment for deliveries not yet carried out and immediate payment of all claims arising from the business relationship. Our obligation to deliver shall be suspended for as long as the customer is in arrears with a due payment.  
5.3The customer is only entitled to retention of payments on the grounds of undisputed or judicially established counter-claims. The customer is only entitled to offsetting on the grounds of undisputed or judicially established counter-claims. We are entitled to rights of retention or offsetting without restriction and within statutory limits.  
5.4We are entitled to rights of retention or offsetting without restriction and within statutory limits.  

6.Transfer of risk, complaints  
6.1The risk is transferred to the customer, at the latest, upon shipment of the delivery parts (or, in the event of collection, is transferred to the customer once the customer’s vehicles have been loaded), even in the event of partial deliveries or if we have undertaken, in a specific case, to provide additional services, for instance shipping costs or delivery and installation.    
6.2If shipping is delayed at the customer’s request or as a result of circumstances for which the customer is responsible, the risk is transferred to the customer on the day on which we indicate that the shipment is ready.  
6.3Statutory obligations of inspection and complaint (§ 377 of the German Commercial Code (HGB)) shall remain unrestricted. If the customer fails to perform an immediate inspection of the product or immediately notify a defect in accordance with § 377 HGB, the product is regarded as having been accepted and the customer may no longer assert any rights pertaining to deficiencies or incomplete delivery. If we negotiate with the customer about a complaint it has raised, this does not represent, without express reference, a tacit waiver on the objection of delayed inspection of the product or complaint of the defect. The same applies for any stated willingness by us to remedy the defect (or a remedy already performed). Complaints must be made in writing.  

7.1We do not undertake any independent guarantee beyond or in addition to the statutory warranty. Anything to the contrary shall apply only if it has been expressly agreed upon.  
We are liable for any defects in the delivery, excluding further claims as follows:
7.2Claims pertaining to defects are excluded in respect of only minor deviations from the agreed or, in the absence of any agreement, usual quality, in respect of only minor impairments to usefulness, in respect of natural use or damages that occurred after the transfer of risk due to faulty or negligent use, excessive strain, unsuitable operating materials or special external influences not provided for in the agreement, and in respect of non-reproducible software faults. If improper modifications or repair work are undertaken by the customer or third parties, then no claims pertaining to defects may be asserted on the basis of those modifications or repair work or the consequences resulting therefrom.  
7.3All delivered goods that have a defect are to be remedied at no cost or to be replaced, in accordance with a right of choice to be exercised by us, if and insofar as its cause already existed before the point in time at which the risk was transferred (supplementary performance).  
7.4In the event of a justified complaint, the customer must give us the opportunity to undertake supplementary performance within a reasonable period.  
7.5If the remedy fails or is not reasonable or dispensable (§ 440 BGB) for the customer because  
a)the supplementary performance by the supplier is ultimately rejected,  
b)the supplementary performance was not effected by a contractually agreed date or within a specified period and the customer has, in the agreement, linked the continuation of its interest in performance with the latter’s timeliness, or  
c)there are special circumstances that justify immediate withdrawal, giving due consideration to the interests of both parties (§ 323(2) BGB), the customer shall immediately have the right to reduce the purchase price or, at its choosing, to withdraw from the agreement and (also additionally, where appropriate) claim damages instead of performance or demand compensation for wasted expenditure.
7.6The expenditure needed for the purposes of the supplementary performance, in particular transport, travel, labour and material costs, shall be borne by us. This shall not apply if the expenditure increases because, after delivery, the object was brought to a location other than the intended delivery destination, unless this relocation is in accordance with the intended use of the object.  
7.7If the customer accepts a defective delivery despite being aware of the defect, it shall only be entitled to the claims and rights pertaining to the defect if it has expressly reserved these upon acceptance.  
7.8The statements made in brochures, advertising materials, descriptions etc. relating to dimensions, weights, performance, electricity consumption etc. are approximate indications and are not quality specifications. They do not constitute any guarantee as to quality or durability. We reserve the right to make changes to an extent that is reasonable for the customer. This shall also apply in respect of design or production changes.  
7.9Claims for supplementary performance shall become time-barred one year from the statutory commencement of the limitation period. This shall also apply in respect of withdrawals, price reductions and claims for damages. This time limit shall not apply if the law prescribes longer mandatory time limits pursuant to §§ 438(1)(2) (Buildings and objects for buildings), 479(1) (Right of recourse) and 634(a)(1)(2) (Construction defects) BGB, and also shall not apply in the case of intentional acts, fraudulent concealment of the defect, non-compliance with a warranty as to quality and a breach of essential contractual obligations (cardinal obligations). In these cases, the statutory limitation periods shall always apply. Statutory provisions regarding suspension of expiration and suspension and recommencement of the time limits shall remain unaffected.  
7.10The customer shall only have right of recourse against us in accordance with § 478 BGB (Recourse of the company) provided that it has not made any agreements with its buyer that go beyond statutory claims pertaining to defects. Furthermore, with regard to the scope of the right of recourse against us in accordance with § 478(2) BGB, clauses 7.2 to 7.8, 7.10 and clause 8 (in its entirety) of this GTC shall apply accordingly.  
7.11Any claims for damage on the part of the customer due to a material defect shall be governed by clause 8.  

8.Exclusion/limitation of liability  
8.1Any claims for damages on the part of the customer, on whatever legal basis, are excluded. This shall not apply in the event of fraudulent concealment of the defect, non-compliance with a warranty as to quality, damage to life and limb or health and/or in cases where we breach our obligations intentionally or by gross negligence, or in the event of a breach of obligations the proper fulfilment of which constitutes a condition sine qua non for the agreement and on the fulfilment of which the customer may as a rule rely (essential contractual obligations / cardinal obligations). Claims under the German Product Liability Act shall also remain unaffected by this limitation of liability. This limitation of liability shall apply in equal measure to breaches of obligations by our corporate bodies and vicarious agents.  
8.2A claim for damages pertaining to the breach of essential contractual obligations shall be limited to contractually typical, foreseeable damage, provided that there is no wilful misconduct or gross negligence or liability on the grounds of injury to life and limb or health.  
8.3The above limitations of liability apply in equal measure to claims for compensation for wasted expenditure (§ 284 BGB). A shift in the burden of proof to the detriment of the customer is not associated with the above provisions.  

9.Reservation of ownership  
9.1We shall retain ownership over all delivered objects (hereinafter: reserved goods) until such time as all claims, on whatever legal basis, have been fulfilled, including future or conditional claims from agreements concluded simultaneously or subsequently. This shall also apply if payments are made in respect of specifically designated claims.  
9.2If there is evidence supporting the assumption of the customer’s insolvency or that such insolvency is impending, we are entitled to withdraw from the agreement without setting a time limit and to demand surrender of the reserved goods.  
9.3Treatment and processing of the reserved goods shall be undertaken on our behalf as manufacturer within the meaning of § 950 BGB, without any obligation on our part. The processed goods shall be considered reserved goods within the meaning of clause 9.1. Where the customer processes, combines or mixes the reserved goods with other goods, we shall be entitled to joint ownership of the new objects in the same proportion as that between the invoice value of the reserved goods and the invoice value of the other goods used. If our ownership expires as a result of the combination or mixing, the customer shall then transfer to us the rights of ownership of the new stock or object to which it is entitled in the amount of the invoice value of the reserved goods, and store them on our behalf at no charge. The rights of joint ownership arising therefrom shall be considered reserved goods within the meaning of clause 9.1.  
9.4The customer is only entitled to resell, process, combine or otherwise incorporate the reserved goods with other objects in the ordinary course of business and provided that it is not in arrears with the payment of the purchase price. Any other use of the reserved goods is impermissible. We must be notified without delay in the event of third-party seizures or other access to the reserved goods. All costs pertaining to intervention shall be borne by the customer, provided that they cannot be collected from the third party and that the third-party proceedings have been legitimately filed. Should the customer allow its buyer to defer payment of the purchase price, it shall reserve ownership of the reserved goods over the buyer under the same conditions by which we reserved ownership of the delivery of the reserved goods. However, the customer is not obligated to reserve ownership over claims arising against its buyer in the future. Otherwise, the customer has no authorisation for resale.  
9.5The customer’s claims arising from the resale of the reserved goods are hereby assigned to us. They serve as collateral to the same extent as the reserved goods. The customer is entitled and authorised to resell only when it is ensured that the claims to which it is entitled have been assigned to us.  
9.6If the customer resells the reserved goods together with other goods not delivered by us at an overall price, the claim arising from the resale is assigned in the amount of the invoice value of the respective reserved goods resold.  
9.7If the assigned claim is included in a current account, the customer assigns an amount of the balance equal to the amount of this claim, including the closing balance from the current account, to us.  
9.8The customer is entitled to collect assigned claims until such time as we revoke that entitlement. We may revoke that entitlement if the customer fails to properly fulfil its payment obligations arising from the business relationship or if we become aware of circumstances liable to significantly reduce the customer’s creditworthiness. If the requirements for exercising the right of revocation have been met, the customer must, at our request, immediately disclose the assigned claims and their respective debtors, provide all information needed to collect the claims, hand over to us the associated documentation, and notify the debtor of the assignment. We are also entitled to notify the debtor of the assignment ourselves. The customer is not otherwise authorised to assign claims, not even on the basis of our collection authorisation.  
9.9If the nominal value (invoiced amount of the goods or nominal amount of the claim rights) of the collateral held by us exceeds the overall claims secured by more than 10%, we are obligated, if the customer so requests, to release collateral at its discretion.  
9.10If we assert our right to reserve ownership, this shall only be considered to be a withdrawal from the agreement if we expressly designate it as such. The customer’s right of ownership over the reserved goods expires if it fails to fulfil its obligations arising from this or another agreement.  
9.11We shall retain ownership over the delivered goods as collateral for all claims against the customer arising from the business relationship. The reservation of ownership shall also extend to the new products resulting from our goods being processed, mixed or combined, whereby we shall be considered the manufacturer. In the case of processing, combining or mixing with objects that do not belong to the customer, we shall acquire joint ownership in the same proportion as that between the invoice value of our reserved goods and the invoice values of the other materials.  
9.12The customer shall immediately assign to us as collateral all claims arising from the resale of the reserved goods in full or to the value of any joint ownership share that we might have. Provided that the customer is willing and able to properly meet its obligations towards us, it may resell the goods owned or jointly owned by us in the ordinary course of business and collect the claims assigned to us itself. The customer may only enter into chattel mortgages, make pledges and assign claims, even through the sale of claims, with our prior written consent.  The customer must notify us immediately of any access by third parties to the goods and claims belonging to us. If the value of the collateral exceeds the claims to be secured by more than 10%, we shall, at the customer’s request, release collateral at our discretion.  Exercising the right to reserve ownership does not constitute a withdrawal from the agreement.  

10.Goodwill returns  
In cases where we accept customer requests for goodwill returns (without being legally obliged to do so), we shall be entitled to charge the customer a flat-rate processing fee of EUR 1.30 per kilogram. The goods must be sent back to MARKLAND at the customer’s expense. The customer shall be entitled to supply evidence proving that the costs we have incurred in connection with the return are lower than the fee referred to above.

11.Data protection  
The customer has been informed and agrees that, during the processing of the order and the settlement of accounts, data shall be processed and stored electronically. The delivery note and invoice simultaneously serve as notice within the meaning of the GDPR.

12.Applicable law, place of jurisdiction  
12.1The laws of the Federal Republic of Germany shall apply to these terms and conditions and the entire business relationship with the customer executed thereunder. Uniform international sales law (UN CISG) and the rules of conflict of private international law, in particular the Rome I Regulation, are hereby excluded.   
12.2The place of fulfilment for all our deliveries and services is the location from where the goods are delivered in each case; the place of fulfilment for customer payment is D-65396 Walluf.  
12.3The exclusive place of jurisdiction for all disputes arising from the business relationship is Wiesbaden.    
12.4In the event that a provision of these terms and conditions or a contractual agreement is or becomes ineffective, this shall not affect the validity of all other provisions and agreements.  

Last updated: February 2019