General Terms and Conditions of Sale (GTCS)

Version of: 05/2016

§ 1 General, Scope of Application

(1) These General Terms and Conditions of Sale (GTCS) shall apply to all business relations of Mar-Ko Fleischwaren GmbH & Co. KG ("Mar-Ko") with our customers ("Purchaser"). The GTCS shall only apply if the Purchaser is an entrepreneur (Section 14 of the German Civil Code (BGB)), a legal entity under public law or special funds under public law.

(2) The GTCS shall apply, in particular, to contracts for the sale and/or delivery of movable items ("goods"), irrespective of whether Mar-Ko manufactures the goods itself or purchases them from suppliers (Sections 433, 651 BGB). Unless otherwise agreed, the GTCS in the version valid at the time of the Purchaser's order or in any case in the version last notified to the Purchaser in text form shall also apply as a framework agreement for similar future contracts, without Mar-Ko having to refer to them again in each individual case.

(3) These GTCS shall apply exclusively. Any deviating, contradicting or supplementing general terms and conditions of the Purchaser shall become a part of the contract only if and to the extent that Mar-Ko has consented to their applicability expressly. This requirement of consent shall apply in any case, for example, including if the Mark-Ko provides the performance to the Purchaser without reservation in the knowledge of the Purchaser's general terms and conditions of business.

(4) Any individual agreements concluded between Mark-Ko and the Purchaser (including ancillary agreements, supplements and amendments) shall always have priority over these GTCS. A written contract or the written confirmation of Mar-Ko or a contract or a confirmation in text form (Section 126b BGB) shall be decisive for the content of such agreements.

(5) Any legally relevant declarations and notices to be given by the Purchaser to Mar-Ko after conclusion of the contract (e.g. specification of deadlines, notices of defects, declarations of rescission or reduction) must be made in text form to become effective.

(6) References to the applicability of statutory provisions shall be for clarification purposes only. Even without such clarification, the statutory provisions shall apply unless they are directly amended or expressly excluded in these GTCS.

§ 2 Conclusion of the Contract

(1) All quotations of Mar-Ko are subject to confirmation and non-binding. This shall also apply if Mar-Ko has provided the Purchaser with catalogues, technical documentation, product samples, other product descriptions or documents – in each case, including in electronic form – to which Mar-Ko reserves ownership rights, copyright and all industrial property rights.

(2) The order of the goods by the Purchaser is considered a binding contractual offer. Unless otherwise stated in the order, Mar-Ko is entitled to accept this contractual offer within 2 weeks from its receipt by Mar-Ko.

(3) Acceptance may be declared either in writing or in text form pursuant to Section 126b BGB (e.g. by order confirmation) or by delivery of the goods to the Purchaser.

(4) The delivery of the goods does not entail any transfer of copyright and other industrial property rights to the Purchaser.

§ 3 Delivery Period, Non-availability of Performance

(1) The delivery period is always agreed individually. Otherwise, it will specified by Mar-Ko upon acceptance of the order.

(2) If Mar-Ko cannot meet binding delivery deadlines for reasons for which it is not responsible (non-availability of performance), Mar-Ko will notify the Purchaser thereof immediately and at the same time inform the Purchaser of the expected new delivery deadline. If the performance cannot be provided within the new delivery period, Mar-Ko shall be entitled to withdraw from the contract in whole or in part; Mar-Ko will reimburse any consideration already provided by the Purchaser without undue delay. A particular instance of non-availability of performance in this sense is late delivery to Mar-Ko by its supplier (a) if Mar-Ko has concluded a congruent covering transaction, (b) neither Mar-Ko nor its supplier was at fault or (c) Mar-Ko is not obliged to procurement in the specific case.

(3) The occurrence of default in delivery shall be determined in accordance with the statutory provisions.

§ 4 Delivery, Passing of Risk

(1) Mar-Ko shall be entitled to make partial deliveries to an extent reasonable for the Purchaser, which shall be deemed to be partial performance.

(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the Purchaser no later than upon delivery. In the event of a sale by dispatch, the risk of accidental loss and accidental deterioration of the goods as well the risk of delay shall pass upon the delivery of the goods to the forwarding agent, the carrier or the person or institution designated to carry out the shipment. Delivery is deemed to be effected if the Purchaser is in default of acceptance.

§ 5 Terms of Payment

(1) The purchase price is due and payable within 21 days from the date of invoice and receipt of the goods by the Purchaser.

(2) Upon expiry of the aforementioned payment deadline, the Purchaser shall be in default. During the period of default, the purchase price shall bear interest at the applicable statutory default interest rate. Mar-Ko reserves the right to claim further damage caused by default. Mar-Ko's claim to the commercial default interest (Section 353 HGB) remains unaffected.

(3) The Purchaser shall have rights of offsetting and retention only if their claim is legally enforceable or undisputed. In the event of defects in the delivery, the counter rights of the Purchaser, in particular pursuant to sentence 2, § 7 (4) of these GTCS, shall remain unaffected.

(4) If it becomes apparent after the conclusion of the contract (e.g. through an application for opening insolvency proceedings) that Mar-Ko's claim to the purchase price is at risk due to the Purchaser's insufficient ability to pay, Mar-Ko shall be entitled to refuse performance and – if applicable, after setting a deadline – to withdraw from the contract in line with the statutory provisions (Section 321 BGB). In the case of contracts for the production of non-fungible items (tailor-made products), Mar-Ko may declare withdrawal immediately; this shall not affect the statutory provisions concerning cases where it is not necessary to specify a deadline.

§ 6 Reservation of Title

(1) Mar-Ko shall retain title to the goods sold until all present and future claims of Mar-Ko arising from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.

(2) Until the secured claims have been satisfied in full, the goods subject to retention of title shall not be pledged to third parties or assigned as security. The Purchaser shall notify Mar-Ko immediately in writing if an application is made to open insolvency proceedings or if third parties access the goods belonging to Mar-Ko (e.g. attachment).

(3) If the Purchaser acts in a way contrary to the contract, in particular in the event of non-payment of the purchase price due, Mar-Ko shall be entitled to withdraw from the contract in accordance with the statutory provisions or/and to demand the return of the goods based on the reservation of title. The demand for return does not automatically include the declaration of withdrawal; rather, Mar-Ko shall be entitled to demand only the return of the goods and to reserve the right to withdraw from the contract. If the Purchaser does not pay the purchase price due, Mar-Ko may only claim these rights if Mar-Ko has previously set the Purchaser a reasonable deadline for payment without success or if setting such a deadline is dispensable under the statutory provisions.

(4) Until the revocation in accordance with (b) below, the Purchaser is authorised to resell or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply additionally:

  • The Purchaser hereby assigns to Mar-Ko by way of security all claims against third parties arising from the resale of the goods. Mar-Ko accepts the assignment. The Purchaser's obligations mentioned in para. 2 shall also apply with regard to the assigned claims.
  • The Purchaser shall remain authorised to collect the claim in addition to Mar-Ko. Mar-Ko undertakes not to collect the claim as long as the Purchaser meets their payment obligations towards Mar-Ko, there is no deficiency in its ability to pay and Mar-Ko does not claim the retention of title by exercising a right in accordance with para. 3. If this is the case, Mar-Ko may request the Purchaser to notify Mar-Ko about the assigned claims and the relevant debtors, to provide all information necessary for the collection, to furnish all accompanying documents and to inform the debtors (third parties) about the assignment. In this case, Mar-Ko shall also be entitled to revoke the Purchaser's authority to resell and process the goods subject to retention of title.
  • If the realisable value of the securities exceeds Mar-Ko's claims by more than 10%, Mar-Ko shall, at the Purchaser's request, release securities at Mar-Ko's discretion.

§ 7 Purchaser's Claims for Defects, Quality of Goods

(1) The statutory provisions shall apply to the rights of the Purchaser in the event of defects of quality and defects of title (including wrong delivery and short delivery), unless otherwise stipulated below. The special legal provisions in the case of final delivery of the goods to a consumer (recourse against suppliers pursuant to Section 478, 479 BGB) shall remain unaffected in all cases.

(2) The Purchaser's claims for defects presuppose that the Purchaser has fulfilled the statutory obligations to inspect and give notice of defects (Sections 377, 381 HGB).

(3) If the delivered item is defective, Mar-Ko may initially choose whether to provide subsequent performance by eliminating the defect (improvement) or by delivering a non-defective item (replacement). Mar-Ko's right to refuse subsequent performance subject to the statutory requirements remains unaffected.

(4) Mar-Ko shall be entitled to make the subsequent performance owed dependent on the Purchaser paying the purchase price due. However, the Purchaser shall be entitled to retain a part of the purchase price, which is reasonable in relation to the defect.

(5) The Purchaser shall give Mar-Ko the time and opportunity required for the subsequent performance owed, in particular hand over the rejected goods for inspection purposes. In the event of a substitute delivery, the Purchaser must return the defective item to Mar-Ko in accordance with the statutory provisions.

(6) The expenses required for the purpose of inspection and subsequent performance, specifically the transportation, travel, labour and material costs, shall be borne by Mar-Ko, if there is actually a defect. If this is not the case, Mar-Ko may demand reimbursement from the Purchaser of the costs incurred from the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not recognisable to the Purchaser.

(7) If subsequent performance has failed or a reasonable deadline to be set by the Purchaser for subsequent performance has expired unsuccessfully or is dispensable according to the statutory provisions, the Purchaser may withdraw from the purchase contract or reduce the purchase price. In the case of minor defects, however, the Purchaser has no right of rescission. If a part of the delivered goods is defective, the Purchaser may only withdraw from the entire contract if the Purchaser has no interest in the remaining part of the delivery. The Purchaser has the burden of proof that the interest in the remaining part of the delivery does not exist.

(8) Claims of the Purchaser for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with § 8 and are otherwise excluded.

§ 8 Additional Liability

(1) Unless otherwise stated in these GTCS, including the following provisions, Mar-Ko shall be liable for any breach of contractual and non-contractual obligations in accordance with the statutory provisions.

(2) Mar-Ko shall be liable for compensation of damages – irrespective of the legal grounds – within the scope of fault-based liability in the case of intent and gross negligence. In the event of simple negligence, Mar-Ko shall only be liable subject to a milder standard of liability in accordance with statutory provisions (e.g. for diligence in its own affairs)

  • for damages arising from injury to life, limb or health,
  • for damage resulting from a more than insignificant breach of an essential contractual obligation (obligation the fulfilment of which is a prerequisite for the proper performance of the contract and on the compliance of which the contracting partner regularly relies and may rely); in this case, however, Mar-Ko's liability is limited to compensation of the foreseeable damage typical for such types of contracts.

(3) The limitations of liability resulting from para. 2 shall also apply to breaches of duty by or in favour of persons for whose fault Mar-Ko is responsible according to statutory provisions.

(4) In addition, the limitations of liability pursuant to para. 2 shall not apply insofar as Mar-Ko has fraudulently concealed a defect or has assumed a guarantee for the quality of the goods and for claims of the Purchaser under the Product Liability Act.

(5) Representations or warranties shall only be effective if Mar-Ko grants them expressly and in writing. In particular, no guarantee is given by sending product or trade samples or product descriptions and catalogues.

(6) Due to a breach of duty which does not consist of a defect, the Purchaser may only withdraw from or terminate the contract if Mar-Ko is responsible for the breach of duty. A free right of termination on the part of the Purchaser (in particular according to Sections 651, 649 BGB) is excluded. In addition, the statutory prerequisites and legal consequences shall apply.

§ 9 Period of Limitation

(1) Notwithstanding Section 438 (1) no. 3 BGB, the general limitation period for claims arising from defects of quality and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance. Section 438 (1) no. 2 BGB and Section 634a (1) no. 2 BGB and other special statutory provisions on limitation (in particular Section 438 (1) no. 1 and (3), Sections 444 and 479 BGB) shall remain unaffected.

(2) The foregoing limitation periods of the law on the sale of goods shall also apply to the Purchaser's contractual and non-contractual claims for damages which are based on a defect of the goods, unless the application of the regular statutory limitation period (Sections 195, 199 BGB) would lead to a shorter limitation period in individual cases. However, the Purchaser's claims for damages pursuant to § 8 para. 2 sentence 1 and sentence 2(a) as well as pursuant to the Product Liability Act shall become statute-barred exclusively in accordance with the statutory limitation periods.

(2) Die vorstehenden Verjährungsfristen des Kaufrechts gelten auch für vertragliche und außervertragliche Schadensersatzansprüche des Käufers, die auf einem Mangel der Ware beruhen, es sei denn die Anwendung der regelmäßigen gesetzlichen Verjährung (§§ 195, 199 BGB) würde im Einzelfall zu einer kürzeren Verjährung führen. Schadensersatzansprüche des Käufers gemäß § 8 Abs. 2 Satz 1 und Satz 2(a) sowie nach dem Produkthaftungsgesetz verjähren jedoch ausschließlich nach den gesetzlichen Verjährungsfristen.

§ 10 Empties

(1) Empties or reusable packaging and transport material received from Mar-Ko, including pallets, Euro crates, H1 hygiene pallets, etc., must be returned by the Purchaser to Mar-Ko cleaned and in a hygienic perfect condition or replaced by empties of the same type, quality and quantity, unless purchased by the Purchaser. If the Purchaser is not able to hand over the empties on delivery, they must arrange return of the empties within 21 days. If the Purchaser is in default with the return, Mar-Ko shall be entitled, after setting a reasonable period of grace, to refuse to take back the empties and to claim damages. A list of non-returned empties sent to the Purchaser shall be deemed recognised if the Purchaser does not object within 7 days.

§ 11 Choice of Law and Jurisdiction

(1) These GTCS and all legal relations between Mar-Ko and the Purchaser shall be subject to the laws of the Federal Republic of Germany, the UN Sales Convention on Contracts for the International Sale of Goods (CISG) being excluded.

(2) If the Purchaser is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the place of business of Mar-Ko in Blankenhain. The same shall apply if the Purchaser is an entrepreneur within the meaning of Section 14 BGB. However, in all cases, Mar-Ko shall also be entitled to bring an action at the place of performance of the delivery obligation in accordance with these GTCS or a prior individual agreement, or at the Purchaser's general place of jurisdiction. Overriding statutory provisions, in particular those concerning exclusive jurisdiction, shall remain unaffected.

§ 12 Salvatory Clause

If individual provisions of these GTCS are or become invalid as a whole or in part, the validity of the remaining provisions or remaining parts thereof shall not be affected.