© Marabu

Terms and Conditions of Sale for the
Marabu GMBH & Co.KG creative colour product range

Version 10/01/2020

I. Application

1. We (the “Supplier”) deliver exclusively under these delivery and payment terms and conditions. These apply to all our deliveries, unless explicitly agreed otherwise in writing between the parties tothecontract.Thelegalprovisions inforceshallalsoapply.

2. Under no circumstances shall the Purchaser's terms and conditions of sale apply, even if we do notexplicitly oppose a reference by the Purchaser to its terms and conditions of sale – regardlessoftheformatandthetimeofthis.ThePurchaser'sterms andconditions ofsaleareonly applicableforus ifwehaveexplicitly acknowledgedthis inwriting.Undernocircumstances do thedeliveries constituteacknowledgementofthePurchaser's terms andconditions ofsale.

3. Acceptance of the delivery constitutes acceptance of these delivery and payment terms and conditions.

4. Our delivery and payment conditions also apply to transactions subsequently conducted between us andthePurchaser,evenifnoexplicitreferenceis madethereto.

II. Signing of the contract

1. Orders are only considered to be accepted when they have been confirmed by the Supplier in writing. In order to be legally valid, verbal and telephone orders, as well as the agreements, amendments andmodifications toanorder,requirethewrittenconfirmationoftheSupplier;the receipt of the delivery note by the Purchaser or the execution of the delivery also constitute confirmation.

2. Supplier quotes are not binding.3.If the Supplier encloses documents such as illustrations, drawings, weight and size information with a quote, these documents only have an approximate value, unless explicitly indicated as binding in writing.

III. Price Germany – Europe/world

Germany & Austria:

1. The applicable prices are the prices indicated in the Supplier's price list at the time of delivery, insofar as no other final price has been explicitly agreed.

2. For shipments with a net goods value (invoiced value, minus VAT) over €250, the price is expressed including shipping, freight (with the exception of surface or cartage freight costs) and packaging costs. For orders with a net goods value between the minimum order value of €100 and the shipping costs exemption limit of €250, proportional packaging and shipping costs of €10 are applicable. For orders below the minimum order value of €100, a €15 processing fee is applied. The other additional fees for express deliveries or deliveries on a specific date made at the request of the Purchaser shall be paid by this party.

3. In principle, the delivery is carried out in the packaging units indicated. Order quantities are rounded up.

World:

1. The applicable prices are the prices indicated in the Supplier's price list at the time of delivery,insofar as no other final price has been explicitly agreed. The minimum order value is €1,500.For orders below this value, a €25 processing fee is applied.

2. All deliveries are sent from the Supplier's plant (D-74321 Bietigheim-Bissingen, Fritz- Lieken-Straße7-9).ThecurrentIncotermsareapplicable.Thedeliveriesarecarried outinthepackagingunits indicatedinthecurrentpricelist.Orderquantities areroundedup tothenextpackagingunit.

IV. Payment conditions

1. The Supplier's invoices are payable within 30 days of the invoice date. In the event of payment in8days followingtheinvoicedate,thePurchaseris authorisedtodeduct2%fromthenetgoodsvalue.

2. Anydisputes must be submitted in writing within eight days of receipt of the invoice. The invoicedateandnumbermustbeindicatedforthedispute.Ifnoobjectionis submittedwithin theaforementioneddeadline,theinvoiceis consideredtohavebeenaccepted.

3. The Supplier is authorised to carry out deliveries against repayment.

4. The Supplier reserves the right to accept bills of exchange and cheques. In any case, acceptance is onlyprovideduponpayment.Thediscountandrecoverycosts aretheresponsibilityofthePurchaser.TheSupplierdoes notprovideanyguaranteewithregardtothetimelypresentation andthenoticeofprotest.Inthecaseofpaymentbybillofexchange,nodiscountis granted.

5. Payments are always considered to have been completed when the amount is definitively availabletotheSupplier.

6. If a payment by the Purchaser under existing contracts is over 10 days past due, if it is unable to meetits liabilities,orifits financialpositionhas significantlydeteriorated,theSupplierreceivables thatstemfromalltheexistingcontracts withthePurchasershallbecomeimmediately payable, the postponement or other payment deferrals – also through the acceptance of bills of exchange – shall be terminated and the Supplier may demand security deposits for any pending deliveries.


V. Delivery deadline

1. The delivery dates and deadlines are only provided for information purposes.

2. The Supplier's delivery obligation is suspended for as long as the Purchaser has overdue payments.

3. Thecases of force majeure, disruption to operation, failure by our suppliers to meet their deliverydeadlines,shortages ofrawmaterials,energy,labour,strikes,lockouts,supply difficulties linkedtotransportationmethods,trafficdisruption,decisionbythepublicauthoritiesorfailurebytheauthorities orotherinstitutions to providetheauthorisationnecessaryfortheperformanceofthedeliveryshallreleasetheSupplierfromits obligationtoprovidetheserviceforthedurationoftheimpedimentandtotheextentoftheimpactthereof,insofaras thedisruptiontotheSupplieris notduetoanintentionalactorgrossnegligenceforwhichitisresponsible.Theaforementioned circumstances maynotbeattributedtotheSupplierifthey occuratthetimeofapre-existingdelay.

4. Insofaras theunforeseenevents citedin paragraph 3 may considerably modify the economic scaleorthecontentoftheservice,ormayconsiderablyimpactouroperation,theSupplierisauthorisedto withdrawfromthecontract.In this case,thePurchaseronlyhas restitutionrights; otherrights,suchas rights todamages,areexcluded.

5. The Supplier is authorised to perform partial services; the aforementioned services may be invoicedseparately.

6. If the Supplier is delayed in providing the service, the Purchaser may withdraw from the contract,ifitagreedareasonablesubsequentexecutiondeadlinewiththeSupplier,andifthisdeadlinehas passedwithoutsuccessfulprovisionoftheservice.Ifthedelayis limitedtopartoftheservice,thePurchasermayonlywithdrawfromtheentirecontractundertheaforementioned conditions ifithas nointerestinthepartialservice.Therighttocompensationintheeventofdelay andrights todamages inexchangefortheservicearelimited to thedamages provided forbytheSupplieratthetimeofsigningthecontractand,interms ofvalue,up totwicethenetvalueofthegoods.This does notapplyifthedelay ornon-executionoftheservicebytheSupplieris duetoanintentionalactorgrossnegligence.


VI. Shipment, transfer of risk

1. The risk is transferred to the Purchaser upon shipment of the goods at the latest. The same shall applyforpartialdeliveries whentheSupplierassumes thedeliverycosts,orwhenittransports thedelivery.Inanyevent,theshipmentis sentfromtheSupplier's plantorwarehouseattherisk ofthePurchaser.Noliabilityis assumedwithregard tothedamageand lossofgoods during transport.

2. If the shipment is delayed due to circumstances out of the control of the Supplier, the risk istransferredtothePurchaseronthedayofprovisionoftheshippingnotice.

3. If no specific shipping instructions have been provided by the Purchaser and if this has been confirmedbytheSupplier,theshippingmethodandrouteshallbechosenbytheSupplier.TheSupplierisnotrequiredtocarryoutdelivery.

VII. Retention of ownership

1. The Supplier shall retain ownership for the goods delivered by it until full payment of all outstanding – even future – debt linked to the commercial relationship, including all additional debt and until the deposit of bills of exchange and cheques provided for this purpose. In the eventofsuspension ofapendinginvoice,theretentionofownership applies forthecorrespondingbalance.Theretention ofownership extends toproducts manufacturedthrough transformation.Intheeventofthetransformation,combinationormixingoftheSupplier's goodswith othermaterials,theSuppliershallacquirejointownership oftheproductcreated in thisway,basedontheproportion ofthevalueoftheSupplier'sgoodsin relationtothevalueoftheothermaterial.Thetransferofownershipis compensated bythefactthatthePurchasershallfreelystoretheseproducts fortheSupplier,withthediligenceofaprofessionalretailer.

2. As a guarantee, the Purchaser hereby transfers all the receivables that stem from the sale of the goodstowhich theSupplierhas ownershiprights,fortheSupplier's proportion ofjointownership ofthegoods sold.

3. If the goods for which ownership is retained are seized by a third party, the Purchaser mustimmediatelyinformtheSupplierthereof,providingaphotocopyoftheseizurereport.

4. The Supplier agrees to release all securities at the request of the Purchase, subject to selection, insofaras thevalueofthesecurities exceeds thevalueofthereceivables tobeguaranteedbymorethan20%.

5. If a request to launch insolvency proceedings is submitted against the Purchaser, the authorisation of thecontractualpartnertoresell,transform,combineormix thegoods shallexpire.Ifasale,etc.is stillcarriedoutbythePurchaserorthelegal(temporary)administrators,thefullprofits ofsuchanaction shallbetransferredtotheSupplier.This is adeparturefromart.170 and171 ofGermaninsolvency law.ThePurchaserorits legal(temporary)administrators arenotauthorisedtorecoverthereceivabletransferredtotheSupplier.

VIII. Guarantee/liability

1. The Supplier is responsible for the major defects affecting the goods, as follows:

a) The goods delivered shall be subject to correction or a new delivery, at the discretion of the Supplier, iftheobjectis unusableorsignificantlydamagedduetocircumstances thatareproventohaveoccurred priortothetransferofrisk.Thereplacementparts arethepropertyoftheSupplier.Theguaranteeprovidedforthereplacementparts andthesubsequentdeliveries is assumedinthesamewayas forthegoods oftheinitialdelivery.Ifacorrection oranewdeliveryis notmadewithinareasonabletimeframe,consideringtheSupplier's deliverypossibilities,thePurchaseris authorisedtodemandadiscountorwithdrawfromthecontract,atits discretion.Theotherrights ofthePurchaser,inparticularwithregardtoconsequentialdamage,areexcluded.This does notapplyintheeventoffraud,grossnegligence,orbreachoftheSupplier's essentialcontractualobligations,as wellas intheeventofendangeringlife,healthorariskofbodilyharm.In theeventofabreachofessentialcontractualobligations,apotentialrighttodamages is limited to compensation forthedamageprovided forin thecontextofthis typeofcontract.Inthecaseofconsequentialdamage,inparticularintheeventofalack ofeconomicsuccess,indirectdamage,otherfinancialdamage,anddamagelinkedtothird-partyrights,noliabilityis assumed.Priortosigningthecontract,thePurchaseris requiredtoinformtheSupplier,in writing,ofanyspecificrisks,potentialforatypicaldamageandexceptionalamounts.

b) If the purchase constitutes a commercial transaction for the two parties, the Purchaser must inspect the goods immediatelyafterreceipt,insofaras this is feasibleinthecontextofthenormalconductofoperations.Ifanydefects areobserved,itmustimmediatelyinformtheSupplierofthis.IfthePurchaserfails toinformtheSupplierofthedefect,thegoodsshallbeconsideredas accepted,exceptinthecaseofadefectthatis notvisibleatthetimeoftheinspection.Inaddition,art.377 etseq oftheCommercialCode(HGB)areapplicable.

c) The Supplier may refuse a correction and a new delivery insofar as the Purchaser has not fulfilled itsobligations.

d) For public declarations such as registration, the Supplier is solely responsible if it has requested thisandifthepurchasedecisionofthecontractualpartnerclearlyrelies uponthedeclaration.

e) The guarantee rights are shall expire twelve months after delivery.

f) The Supplier assumes no responsibility for a guarantee in relation to the damage caused by normal wear,incorrectornegligenthandling,non-compliantstorageandinappropriateornon-compliantuse,orfailuretofollowourtransformationorusageinstructions.

2. Allreturns ofgoods requireouragreement,evenreturns tobe made due to a legitimate complaint. In theabsenceofthis agreement,wemayrefusetoacceptthegoods.Returns wehaveapprovedaresubjecttocreditfortheirfairvalue,with thedeductionofinspection,repairorrepackaging costs,and processingfees ofup to20%ofthenetvalueofthegoods.Products thatarenolongerdeliveredas partoftherangeand/orwhichcannolongerbepurchasedarenoteligibleforcreditorexchange.Allreturnsmustbeaccompaniedbythedeliverydocuments andthespecificinvoiceinformation.

IX. Other rights of the Supplier and the Purchaser

1. f the unforeseen events cited in section V.3 occur and if, due to this, the economic scale or the contentofthedeliveryis considerablymodified,ifsuch events haveaconsiderableimpacton theSupplier's operationoriftheagreedserviceis foundtobeimpossibleafterthesigningofthecontract,theSupplieris authorisedtomakeareasonableadjustmenttothecontract.Ifanadjustmenttothecontractis notacceptablefromaneconomicpointofview,theSupplieris authorisedtofullyorpartiallywithdrawfromthecontract.

2. The Supplier is authorised to withdraw from the contract if a request to launch insolvency proceedings is lodged oriflegalorextra-judicialcompensation proceedings arelaunchedwithregardtothePurchaser's assets.

3. The Purchaser may withdraw from the contract if the service for which the Supplier is responsible is impossibleduetoevents thatoccurpriortothetransferofriskandwhichareattributabletotheSupplier.

4. The right to damages due to impossibility is limited to the damages foreseen at the time of signing the contractand,interms ofvalue,up totentimes thevalueofthegoods.This does notapplyiftheSuppliercausedtheimpedimentthroughanintentionalactorgrossnegligence.

5. Paragraphs 3 and 4 above are both applicable in the event of incapacity.

6. Insofar as the rights and demands of the Purchaser are not explicitly cited in these Terms and Conditions ofSaleandDelivery,theyareexcludedinsofaras acceptablebylaw.

X. Transferability of rights

The Purchaser may only transfer all or part of its rights under this contract to third parties with the prior, writtenapprovalofthe Supplier.

XI. Compensation, retention

Compensation with counterclaims or the exercise of the right of retention against the Supplier's receivables areonlyauthorisedifthecounterclaimis uncontestedandlegallydeclared.
 

XII. Data protection

We are authorised to process and save the Purchaser's data obtained in the context of the commercial relationship
undertheterms of the German data protection law.

XIII. Place of execution, competent jurisdiction

1. The place of execution of the Supplier's obligations is the location of the plant concerned or the partner workshops of the Supplier; for the Purchaser's obligations, it is the location of the Supplier's registered office.

2. Stuttgart is the exclusive competent jurisdiction for all the objectives that stem from the commercial relationship,including theobjectives thatstemfromthebills ofexchangeandcheques.However,the SuppliermayalsotakeactionbeforethecompetentcourtforthePurchaser's registeredoffice.

XIV. Final provisions, safeguard clause

1. German law is exclusively applicable, to the exclusion of the conflict of laws rules and the United Nations convention on the international sale of goods (CISG).

2. If the individual provisions above are deemed invalid at any time, the other provisions shall not be affected.Ifoneoftheprovisions is declaredfullyorpartiallyinvalid,thecontractualpartnersshallimmediatelyendeavourtoachievetheeconomicsuccesssoughtbytheinvalidprovisionthrough anothermethodauthorisedbylaw.

3. All agreements must be set out in writing. The written format is also required if the necessary declarationis provided in oneofthewritten formats corresponding to art.126b oftheGerman CivilCode(BGB),forexamplebyfax oremail.Theverbaldeclarations oftheSupplier's employees areonly bindingwhenconfirmedbytheSupplier.


Version 10/01/2020

 

Marabu Creative Colours Terms and Conditions
Marabu Couleurs Creatives Conditions Generales
Marabu Kreativfarben AGB