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§1 Validity of the terms and conditions
- The deliveries, services and offers of the MAYKO Natursteinwerke GmbH & Cie. KG (hereinafter called MAYKO) shall be solely carried out based on these General Terms and Conditions. Therefore, these shall also apply for all future business relations even if they are not again explicitly stipulated. At the latest, these terms shall be presumed to be accepted with the acceptance of the merchandise or service. A customer’s acknowledgments referring to his/her own terms and conditions resp. terms and conditions of purchase shall be hereby rejected.
- All stipulations, which are made between MAYKO and the customer for the purpose of fulfilling this agreement, shall be recorded in writing in this agreement.
§2 Offer and conclusion of the contract
- The offers made by MAYKO shall be subject to change and without commitment. Acceptances and all orders shall require a confirmation from MAYKO in writing or transmitted by electronic means in order to be legally valid.
- Drawings, illustrations, dimensions, weights or other production specifications shall only be binding if these are explicitly stipulated in writing.
- The salespersons of MAYKO shall not be authorised to make verbal subsidiary agreements or to give verbal assurances, which exceed the content of the written agreement.
- Unless otherwise indicated, the prices contained in the offers from MAYKO shall be valid for 30 days as of their date. Apart from that, the prices stated in the order confirmation from MAYKO shall be decisive plus the respective statutory value added tax. Additional deliveries and services shall be billed separately.
- Should delivery periods of more than four months as of contract conclusion be stipulated, the prices valid on the day of delivery shall be charged. The customer can withdraw from the contract if the price increase significantly exceeds the increase of the general cost of living in the time between the orders and the delivery.
- Unless otherwise stipulated, the prices shall be calculated ex our warehouse or works.
§4 Delivery time and time of performance
- Delivery dates or times, which can be stipulated as binding or non-binding shall require the written form.
- MAYKO shall not be accountable for delays in delivery and performance including stipulated binding periods and dates, which are due to force majeure or due to events which make delivery by MAYKO not only temporarily significantly difficult or impossible - in particular this shall include strikes, lockouts, official directives, etc., even if they occur at the suppliers of MAYKO or their sub-suppliers. You shall entitle MAYKO to postpone the delivery resp. service for the duration of the hindrance plus an appropriate lead time or to withdraw fully or partially from the contract due to the part, which was not yet fulfilled.
- Should the hindrance last longer than three months, the customer shall be entitled to withdraw from the contract with regard to the part, which was not yet fulfilled, after an appropriate period of grace. Should the delivery time be extended or should MAYKO be released from its obligation, the customer shall not be able to deduce any claims herefrom. MAYKO shall only be able to invoke the stated circumstances if it informs the customer immediately.
- Provided that MAYKO is accountable for the non-compliance to guaranteed periods and dates or is in default, the customer shall be entitled to compensation for delay amounting to 0.50 % for every full week of the delay however, not more than 5.00 % of the invoice value of the deliveries and services affected by the delay. Any further claims shall be excluded unless the delay is based on at least gross negligence by MAYKO.
- MAYKO shall be entitled to partial deliveries and partial services at any time unless the partial delivery or partial service is not in the interest of the customer.
- The compliance with the delivery and performance commitments by MAYKO shall presume the timely and proper fulfilment of the customer’s commitments.
- Should the customer be in default of acceptance, MAYKO shall be entitled to demand indemnity for its resulting loss; the risk of accidental deterioration and of accidental destruction shall pass to the customer on the occurrence of a default of acceptance.
- Should the customer be accountable for disruptions or delays of the work performance, which is to be rendered by MAYKO, the customer shall owe the costs resulting from the disruption or delay, which shall be charged separately.
§5 Passing of risk
- The risk shall pass to the customer as soon as the consignment has been handed over to the person carrying out transport or has left the MAYKO warehouse for the purpose of shipment. Should the shipment be postponed upon the customer’s request, the risk shall be passed to the customer with the notification of readiness for shipment.
§6 Default of acceptance
- Should the customer refuse to accept the delivery after the expiration of a contractually stipulated period or an appropriately set period of grace of at least one week or if the customer’s behaviour otherwise demonstrates his/her unwillingness to accept, MAYKO shall be able to withdraw from the contract or to demand compensation for damages due to non-fulfilment. This compensation for damages shall amount to 20.00 % of the net merchandise value plus additional value added tax in the statutory amount if applicable. In this connection, the customer shall reserve the right to verify the precise resulting damage, which MAYKO can then claim.
- MAYKO shall guarantee that the products are free from fabrication and material defects (for this please also cp. to section 2). The warranty period shall amount to six months and shall begin with the delivery date.
- As a natural product, natural stone material is subject to natural variations in colour and structure, diverseness in grain size, deviations of colour and structure such as spots, veins, shading and pores. If and as far as there are the aforementioned variations and deviations in the natural stone material, they shall not be regarded as a shortcoming or defect. They cannot be made a matter of complaints or notice of defects. If and as far as samples were shown or given to the customer, this was done without engagement as they merely indicate the general appearance of the stone. Hand samples and flakes can never combine and exemplarily reflect all the differences in colour, markings and texture of the stone.
- Regarding the treatment and processing of the natural stones, in particular DIN 18332 shall be applied for the critical dimensions, flatness tolerances, appearance and correction. Furthermore, the respectively effective regulations of the German National Stone Association (DNV) shall apply.
- The customer shall immediately inform MAYKO in writing of apparent defects however, at the latest within eight days after receipt of the article of sale. Defects which cannot be detected within this period despite thorough inspection shall be conveyed to MAYKO in writing immediately after the detection thereof.
- The overall warranty claims against MAYKO or regarding individual parts shall be limited to the right of remedy or subsequent delivery. However, the customer’s right shall be reserved to demand a payment reduction or, if a building service is not the object of the warranty, the cancellation of the contract according to his/her choice for the failure of two remedies or compensation deliveries, each within a period of two weeks after receipt of the notice of defects.
- Liability for fair wear and tear shall be excluded.
- Only the direct customer shall be entitled to warranty claims against MAYKO and they shall not be transferable.
- In conclusion, the preceding sections include the warranty for the products and shall exclude any other kinds of warranty claims. This shall not apply to claims based on warranted characteristics.
§8 Title retention
- Until all accounts are settled (including all balance claims from current accounts), which MAYKO is entitled to now or in the future from the customer on any legal grounds, MAYKO shall be provided with the following securities, which it shall release upon request according to its choice as far as their value effectively exceeds the accounts by more than 20.00 %.
- The merchandise shall remain the property of MAYKO. Processing or alteration shall always be carried out for MAYKO as the manufacturer however, without any obligation for it. Should the (co-)ownership of MAYKO expire because of combination, it shall here and now be stipulated that the customer’s (co-)ownership of the standard object shall be transferred to MAYKO at a proportional value (invoice value). The customer shall maintain the (co-)ownership of MAYKO free of charge. Merchandise, for which MAYKO is entitled to (co-)ownership of, shall be designated as merchandise subject to title retention in the following.
- The customer shall be entitled to process and sell the merchandise subject to title retention in the ordinary course of business as long as he/she is not in default. Pledges or collateral assignments shall be impermissible. The customer shall assign accounts by way of security (including all balance claims from current accounts) from the resale or based on another legal ground (insurance, unlawful act) regarding the merchandise subject to title retention, here and now to the full extent to MAYKO. MAYKO shall revocably authorise him/her to collect assigned accounts for its account in their own name. This collection authorisation can only be revoked if the customer does not comply with his/her payment obligations.
- In the case of access to the merchandise subject to title retention by third parties, in particular pledges, the customer shall indicate the ownership of MAYKO and immediately inform it so that MAYKO can enforce its property rights. As far as the third party is not able to reimburse MAYKO for judical or extrajudical costs resulting in this connection, the customer shall be liable for these.
- In the event of breach of contract by the customer - in particular default of payment - MAKYKO shall be entitled to reclaim the merchandise subject to title retention or if applicable, to demand the transfer of the customer’s claim for restitution against a third party. The taking back or pledging of the merchandise subject to title retention by MAKYO shall not constitute a withdrawal from the contract.
- Unless otherwise stipulated, the invoices from MAYKO for contracts of sale (purchase price, ancillary services such as packaging on pallets with steel strapping or the like, advanced costs e.g. customs duty) shall be due with the delivery of the object of purchase - at the latest however, eight days after the receipt of the notice that the merchandise is ready for collection and the handing over or sending of the invoice.
- Despite the customer’s contrary provisions, MAYKO shall be entitled to first credit payments against the customer’s pending debts and shall inform the customer on how the settlement was carried out. Should costs and interest have already incurred, MAYKO shall be entitled to first credit the payment against the costs, then against the interest and lastly against the principle service.
- Payment shall not be regarded as made until the amount is available to MAYKO. In the case of cheques, payment shall not be regarded as made until the cheque is honoured.
- The customer shall be in default when a reminder is sent after payment is due, in any case however, 30 days after the receipt or due date of an invoice or equivalent payment notices. Default interest shall be 5.00 % points above the base rate pursuant to §1 of the Discount Rate Transition Act dated 06/09/1998 (BGBl. I S. 1242).
- Should MAYKO become aware of circumstances, which question the customer’s credit standing, in particular when a cheque is not honoured or the customer’s payments are suspended or should MAYKO become aware of other circumstances, which question the customer’s credit standing, MAKYO shall be entitled to demand immediate payment of the overall residual debt even if it accepted cheques. In this case, MAYKO shall also be entitled to demand advance payments or collateral security.
- The customer shall only be entitled to offsetting or reduction, even if notices of defects or counterclaims are being asserted, if the counterclaims are established as final and absolute or are undisputed. However, the customer shall also be entitled to retention based on counterclaims from the same contractual relationship.
- MAYKO shall indemnify the customer and his/her customers from claims resulting from the breach of copyrights, trade marks or patents unless the conceptual design of the object of purchase comes from the customer. The indemnity obligation of MAYKO shall be limited to foreseeable damages according to amount.
- An additional requirement for the indemnification shall be that MAYKO can carry out the legal disputes and that the asserted infringement can only be attributed to the construction method of the objects of purchase of MAYKO without a combination or use with other products.
- MAYKO shall optionally have the right to free itself from the obligations assumed in sec. 1 by either a.) acquiring the necessary licences regarding the allegedly infringed patents or b.) making a revised article of sale resp. parts of it available to the customer, which in the case of an exchange for the infringing article of sale resp. its part eliminates the accusation of infringement of the article of sale.
- All drawings, drafts, design proposals, samples and advertising prints made by the customer as well as calculation documents prepared by MAYKO shall remain the property of MAYKO. The customer shall not be permitted to replicate them nor make them available to third parties.
- Unless otherwise expressly stipulated in writing, information submitted to MAYKO in conjunction with orders shall not be regarded as confidential.
§12 Limitation of liability
- Claims for damages against MAYKO as well as against its vicarious agents resulting from positive violations of contractual duties and from unlawful acts shall be excluded provided that a deliberate or grossly negligent action does not exist. This shall also apply to claims for damages due to non-fulfilment however, only insofar as the replacement of indirect or consequential harm caused by a defect is demanded unless the liability is based on an assurance, which is intended to protect the customer against the risk of such damages. All liability shall be limited to the foreseeable damages at contract conclusion. In any case, liability by MAYKO pursuant to the Product Liability Act and other claims based on manufacturer’s liability shall remain unaffected.
§13 Withdrawal by MAYKO
- Should it not be able to be determined that the order is unexecutable in the existing manner until during the course of proper processing, despite prior competent assessment, or that it can only be executed with an unreasonable price increase, MAYKO shall be entitled to withdraw from the contract should the customer not accept a possible contract amendment. Should there be a withdrawal from the contract, the customer shall only be entitled to the free return of the object provided for processing in the respective condition. Other claims, in particular damage compensation, shall not exist.
- MAYKO shall also be entitled to withdraw from the contract should the customer’s financial circumstances significantly worsen so that the entitlement to the return service is at risk and the customer does not furnish security after having been requested to do so by MAYKO.
- Should MAYKO rightly withdraw from this contract, the customer shall, immediately after being requested to do so by MAYKO, bring back the merchandise, which he/she has already been provided with at his/her own expense and own risk to the works or warehouse of MAYKO. As compensation for the expenses incurred, the transfer of use or depreciation, the customer shall pay a lump sum of 20.00 % of the net invoiced value plus statutory value added tax. The contracting parties shall be free to verify or claim greater or lesser damage.
§14 Application of the VOB/B (German Construction Contract Procedures) for contracts for work and services and contracts for work and materials
- If and as far as it is a matter of construction work, the VOB Part B (VOB/B) - General Contract Regulations for the Execution of Construction Work - shall be stipulated as decisive. The customer shall be offered the option of viewing the VOB/B at the registered office of MAYKO. In addition to that, the provisions of this contract shall apply.
- Our General Terms and Conditions shall apply correspondingly without restrictions for other contracts for work and services and contracts for work and materials with the stipulation that instead of the term “delivery“ the term “service provision" shall be used.
§15 Data privacy
- Pursuant to §33 Data Protection Act, it is pointed out to the customer that his/her data shall be stored and processed in line with order processing - in particular also for invoicing.
§16 Applicable law, jurisdiction, partial nullity
- The laws of the Federal Republic of Germany shall apply to these General Terms and Conditions and all legal disputes between MAYKO and the customer.
- As far as the customer is a registered trader in terms of the German Commercial Code, a corporate body under public law or a special fund under public law, Mayen shall be the sole place of jurisdiction for all direct or indirect disputes resulting from the contractual relationship.
- However contrary to sec. 2, MAYKO shall also be entitled to take legal action at the customer’s business location.
- Should a provision in these General Terms and Conditions or a provision in line with other agreements be or become ineffective, the effectiveness of all other provisions or agreements shall not be affected thereof.