Autumn collection now available

MARINEPOOL is the largest European manufacturer of lifejackets in the sports sector

GENERAL TERMS AND CONDITIONS for Commercial Buyers and Bulk Purchases

§ 1 Scope

(1)  The present terms and conditions shall apply exclusively. Terms and conditions of any buyer or other contractual counterparty in conflict with or in deviation from our terms and conditions shall therefore not apply, unless explicitly agreed to by us in writing. The present terms and conditions shall equally apply to any and all deliveries made by us conditionally due to our knowledge of and acquaintance with such conflicting or deviating terms and conditions of the respective buyer.

(2)  Any and all arrangements between us and a new buyer for the purpose of initial contractual performance shall require written form.

(3)  Any subsequent contractual performance shall equally be subject to the present terms and conditions and not require any additional arrangements.

(4)  Unless otherwise provided for in the written order confirmation, the present terms and conditions shall exclusively apply to entrepreneurs within the meaning of Section 310 paragraph 1 of the German Civil Code.

 

§ 2 Quotations

Any and all quotations submitted by us shall be and remain non-binding, unless otherwise provided for in a written order confirmation which, in turn, shall satisfy the written form requirement when sent by e-mail. Explicit reference shall be taken to § 4 clause 2 below.

 

§ 3 Prices and Terms of Payment

(1)  All prices shall be net of any applicable VAT and valid as of the respective delivery date. They do not include costs for packaging or transport.

(2)  We shall reserve the right to increase our prices at any time in case of a significant increase in costs following the conclusion of the present agreement, including but not limited to increases in costs for shipping, production or commodities due to collective agreements or increased delivery, production and/or material costs (or prices, respectively) or currency fluctuations. Moreover, the foregoing shall particularly apply to any and all agreements with time spans of more than four months between conclusion and delivery. However, reduced costs shall equally be taken into account. Proof of any such increase in costs will be provided upon request. Price increases will be notified by e‑mail to the address provided to us for the purpose of contractually required notifications. A substantial increase in prices shall entitle the buyer to withdraw from the present agreement and to demand reimbursement of the purchase price, notification of which shall be provided in writing.

(3)  Unless agreed otherwise in writing, the following terms of payment shall apply: Deliveries to first‑time buyers shall be paid for in cash on delivery or in advance. Any fees incurred for cash on delivery payments shall be passed on to the respective buyer. Deliveries to returning buyers shall be paid within 10 days after the respective invoice date less 2% discount or net cash 30 days after receipt of the respective invoice. However, buyers in default will be required to either pay in cash on delivery or in advance, pending prior notification thereof.

(4)  Moreover, any buyer in default will be liable to pay default interest in the amount of 9% p.a. above the base interest rate set by the German Central Bank (Deutsche Bundesbank). However, we reserve the right to verifiably establish and thereupon claim any damage in exceedance thereof.

(5)  Any amounts received will automatically be used to settle the oldest outstanding claims.

(6)  Setting off competing claims shall require the buyer’s counterclaims to be either final and indisputable or acknowledged and accepted by us. Disputed counterclaims shall not give rise to any right of retention on the buyer’s part.

 

§ 4 Delivery Periods and Default of Acceptance

(1)  Unless explicitly agreed to by us in writing, any and all delivery periods and dates specified by us shall be non-binding.

(2)  “Force Majeure” shall be the occurrence of an event or circumstance preventing either party from performing one or more of its contractual obligations, whereas the defaulting party shall provide proof of the following in order to invoke the present provision:

(a)   The defaulting party cannot be reasonably expected to have control over the occurrence or circumstance preventing it from performing its contractual obligations; and

(b)  The occurrence or circumstance could not have been reasonably foreseen at the time of the conclusion of the present agreement; and

(c)   The defaulting party could not have been reasonably expected to prevent or overcome the consequences and effects of the occurrence or circumstance.

Until proven otherwise, the following occurrences and circumstances shall be considered to satisfy the requirements provided for hereinabove: (i) war (whether war has been declared or not), hostilities, attacks, acts of foreign enemies, large-scale military mobilisation; (ii) civil war, civil commotion, rebellion and revolution, military or usurped power, insurrection, terrorist activities, sabotage, piracy; (iii) currency and trade restrictions, embargoes, sanctions; (iv) lawful or unlawful official acts, compliance with applicable law and government ordinances, expropriation, seizure of plants, requisitioning, nationalisation; (v) plagues, epidemics, natural disasters or extreme natural occurrences (such as typhoons, monsoons, hurricanes or cyclones); (vi) explosions, fires, destruction of equipment, long‑term unavailability of means of transport, long‑term failure of telecommunications or information systems or long‑term disruptions of the power supply; and (vii) social disturbances, such as boycotts, strikes, lockouts, slowdowns, occupation of factories and buildings.

Any party verifiably satisfying the aforementioned requirements and therefore effectively invoking the present clause shall, as of the time of the occurrence or circumstance beginning to prevent it from performing, be exempt from any and all obligations of contractual performance as well as from any liability for damages and any other contractually agreed remedy for breach of contract, provided, however, notice thereof is given without delay. The foregoing shall not apply to payment claims. Any default in promptly notifying and successfully invoking an event or circumstance of Force Majeure will result in the aforementioned exemptions to become effective only upon the other party’s receipt of such notification. Where the effects and consequences of such occurrence or circumstance are only temporary, the exemptions provided for hereinabove shall apply only for such duration as the affected party is prevented from performing its contractual obligations by the respectively invoked occurrence or circumstance. However, where the duration of the occurrence or circumstance has the effect of substantially depriving the parties of that which they had a right to reasonably expect by virtue of the present agreement, either party may terminate the present agreement by giving reasonable notice to the other party.

(3)  Any culpable failure on our part to deliver in time shall entitle the buyer to claim a lump‑sum default penalty of 0.5% of the net invoice amount for each complete week of such default, however, in total no more than 5% of the net invoice amount.

(4)  The buyer may choose to grant us a grace period for any delayed delivery and warn us of their intention to otherwise refuse to accept delivery. If we fail to deliver within such grace period, the buyer may revoke the present agreement. However, the buyer may claim damages in the amount of any foreseeable loss only for non‑performance due to intent or gross negligence on our part. Any further damage claims shall be excluded.

(5)  Subject to Force Majeure pursuant to § 4 clause (2) above, the limitation of liability provided for in § 4 clauses (3) and (4) hereinabove shall not apply to agreements to be performed exactly at a stipulated time or within a stipulated period.

(6)  Due compliance with our obligation to deliver will, in turn, require the buyer to duly and timely perform their contractual obligations.

(7)  Partial deliveries as well as commercially reasonable variations in quality, colour, features, measurements etc. shall be permissible.

(8)  Any default of acceptance by the buyer as well as any breach of their other obligations to cooperate shall entitle us to claim all damages resulting therefrom, including additional expenses. Furthermore, the risk of accidental destruction and accidental deterioration of the goods shall pass to the buyer at the time of default of acceptance.

 

§ 5 Passing of Risk

(1)  Unless explicitly agreed to otherwise in writing, both shipping method and packaging shall be selected by us to the best of our judgement, commonly ex works.

(2)  The risk shall pass to the buyer upon hand‑over of the goods to the carrier or as soon as the goods have left the seller’s warehouse. Any goods impossible to be dispatched and shipped for reasons outside our purview shall be notified to the buyer as ready for transport, whereas, in any such case, the risk shall pass to the buyer upon such notification.

 

§ 6 Guarantee of Quality

(1)  We hereby warrant the products to be free from manufacturing defects and defects in material.

(2)  The warranty given hereinabove shall remain valid for a duration of 24 months as of the passing of risk. The foregoing shall be a limitation period and equally apply to any claims for consequential damages, provided, however, no damages for tort are claimed. Moreover, the foregoing shall exclusively apply to defects resulting from the customary use of the goods under conditions that may be reasonably expected (such as weather, intended purpose), whereas any claims for damages from either improper use or use of the goods for other than the intended purposes as well as any claims for damages from repair and maintenance in violation of the manufacturer’s instructions and from improper alterations applied to the goods, including but not limited to repairs done by a third party, shall be excluded. The warranty shall not apply to normal wear and tear nor to damages from improper handling of the goods.

(3)  Any and all defects shall be notified in writing and claimed immediately after the goods have been received and thoroughly inspected pursuant to Section 377 of the German Commercial Code. Any defects not revealed in such timely and thorough inspection may be notified retroactively, however, immediately after becoming known to the buyer. Any such retroactive notification shall equally be made in writing. Any other claims for defects may be reviewed by us as a gesture of good will only, whereas there shall be no legally enforceable right thereto.

(4)  We shall have the right to cure any and all defects for which we are responsible. However, if we are either unwilling or unable to cure or if such cure would require an unreasonable amount of time for reasons within our purview or if such cure fails for other reasons, the buyer shall be entitled to either revoke the present agreement or demand an appropriate reduction of the purchase price.

(5)  Unless provided for otherwise below, any other claims of the buyer shall be excluded irrespective of their legal basis.

(6)  The aforementioned limitation shall not apply to our liability for intent and gross negligence on our part or on the part of our representatives and agents. We shall equally remain liable for injuries to life, limb, and health pursuant to applicable law. Moreover, we shall remain liable for damages claimed by the buyer under guarantees given by us pursuant to Section 276 paragraph 1 first sentence of the German Civil Code.

(7)  Any liability in damages beyond the scope laid down in clauses (5) and (6) hereinabove shall be excluded to the legally permissible extent.

 

§ 7 Overall Liability

(1)  Any liability in damages beyond the scope laid down in § 6 clauses (5) to (7) shall be excluded irrespective of the legal nature of the underlying claim.

(2)  Clause (1) hereinabove shall not apply to claims brought forward under the German Product Liability Act.

 

§ 8 Retention of Title

(1)  We shall reserve title to the delivered goods until all amounts due to us from our commercial relationship with the buyer have been paid in full, regardless of whether or not any specific claims have been settled. Such retention of title shall serve to secure the payment of the final invoice amount payable by buyers with a running account.

(2)  For any breach of contract by the buyer, including but not limited to late payment, we shall have the right to prohibit any resale of the delivered goods and require the buyer to return the delivered goods to us which, in itself, shall not be deemed a revocation of the present agreement. Any such revocation shall require an express written statement by us to that effect. The buyer hereby agrees to any and all persons and vehicles contracted by us to collect the goods to be returned to access the premises where the goods are located.

(3)  Seizures and other third‑party actions shall be notified to us in writing without delay to enable us to file for proceedings pursuant to Section 771 of the German Code of Civil Procedure. Any court and out‑of‑court expenses for proceedings pursuant to Section 771 of the German Code of Civil Procedure not reimbursable to us by the relevant third party shall be reimbursed to us by the buyer.

(4)  The buyer shall be authorised to resell the purchased goods in the ordinary course of their business, whereas any and all of the buyer’s claims arising therefrom against their customers and other third parties shall be assigned to us. We hereby accept this assignment in the amount of our final invoice (including VAT), regardless of whether or not the purchased goods have been processed before their resale. Any claims assigned to us in advance by buyers with a running account shall further include both the acknowledged balance as well as any surplus balance remaining after a customer’s bankruptcy (“kausaler Saldo”). The buyer shall remain authorised to collect all assigned claims, whereas our right to collect such claims shall remain unaffected thereby. However, we shall abstain from collecting such claims for as long as the buyer is able to meet their payment obligations arising from the respectively received proceeds in due time and without default and provided no application to open insolvency proceedings has been filed and no cessation of payments has occurred. Otherwise, we shall be authorised to request the buyer to disclose the respectively assigned claims and the identity of the relevant debtors to us as well as to hand over any and all information required to collect the amounts due and any and all related documents and to further notify the debtor (or third party) of the assignment.

(5)  The buyer may request us to release collaterals to the extent of such collaterals exceeding the amount of the collateralised claims by more than 20%, whereas we shall select the specific collaterals to be released in our own discretion.

 

§ 9 Place of Jurisdiction

(1)  Place of jurisdiction for any and all disputes between us and registered traders shall be at our registered office. However, we shall reserve the right to bring action against any buyer at their place of residence. Unless otherwise provided for in the order confirmation, our registered office shall be the place of performance.

(2)  The present agreement shall be subject to the laws of the Federal Republic of Germany only. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.

 

§ 10 Severability

If any provision of the present agreement is or becomes fully or partially invalid or void due to amendments to applicable legislation, a court order or otherwise, the remaining provisions shall remain valid and unaffected thereby. The parties shall act in good faith in replacing any such invalid or void provision with a valid provision that comes closest to the original intent and purpose of the invalid or void provision and that would have been agreed upon by the parties had they foreseen the invalidity or voidness of the provision to be replaced at the time of the conclusion of the present agreement. The foregoing shall equally apply to gaps in the present agreement.

 

§ 11 Written Form Requirement

The parties do not agree the written form to be mandatorily required, unless otherwise provided for in the present agreement. E-mails shall be sufficient to meet any such written form requirement

 

 

to top