General Terms and Conditions
a) These General Terms and Conditions (hereinafter referred to as “T&C”) apply in the version valid at the time of purchase and also apply to all future purchase agreements with companies if an offer contains an unambiguous reference to the inclusion of the T&C, even if they are not expressly agreed again at this point.
b) Terms and conditions that deviate from, complement or conflict with the present T&C will generally not become part of the contract, even if known, unless their validity is expressly agreed to.
c) All agreements made between us and our customer for the execution of the contract shall be set down in writing in the contract.
2. Conclusion of Contract
a) Our offers and all prices given are non-binding; they become binding only through our written order confirmation. Your order constitutes a legally binding offer to conclude a purchase contract. In our online shop for specialist retailers, contracts become binding when we send out an order confirmation by e-mail. An order acknowledgement constitutes no order confirmation, but simply confirms the receipt and content of your pending purchase order. We are entitled to accept the offer made in your order within 2 weeks after receipt and thereby to conclude the contract.
b) All weights and dimensions, drawings, explanations, descriptions and illustrations contained in product descriptions are customary approximations and therefore do not constitute any guarantee of these properties.
c) Subsequent changes (changes made after sample approval) at the request of the customer, including any resulting production stoppage, shall be charged to the customer.
d) When ordering via e-mail for specialist retailers, the order acknowledgement sent by e-mail allows you to check and save the terms of the contract before or at the time of conclusion. The associated T&C are available in reproducible form by following the link “Our T&C” before and at the time of conclusion. After conclusion, the text of the contract will not be stored separately by us; it will therefore not be accessible or available from us after conclusion.
e) The conclusion of the purchase contract is subject to the proviso that we reserve the right to perform only partially or not at all in case of incorrect or improper self-delivery by suppliers. This only applies only in the event that Maiback GmbH is not responsible for the non-delivery, in particular if we have agreed a congruent covering transaction with our suppliers. In case a performance is not or only partly available, we will immediately inform the customer and refund without delay.
f) We reserve the right to correct prices on a case-by-case basis if exchange rate-related price adjustments become necessary and/or if raw material prices have changed up to the time of the order execution. If material costs or wages increase after confirmation of the order, we are likewise entitled to adjust prices in accordance with the cost increase occurred. The customer has the right to terminate the contract if the increase is more than 10% of the agreed price. However, the customer must reimburse any material and labour costs incurred until then.
g) The place of performance for all contractual and legal claims is generally the registered office of Maiback GmbH in Allendorf/Lumda, unless otherwise stated in the order confirmation.
h) The contract and communication language is German.
3. Terms of delivery and payment
a) All prices quoted in our offers are without packaging, freight, postage and insurance costs, unless agreed otherwise. The amount of these costs shall be determined in accordance with the information given in any specific offer and will have to be paid in addition to the purchase price.
b) Shipment shall also be at the expense and risk of the customer in the case of “free shipping”; risk shall pass to the customer as soon as the shipment has been handed over to the person performing the transport. If handover or dispatch is delayed because of a circumstance for which the customer is responsible, the risk shall pass to the customer on the day of readiness for dispatch.
c) Maiback GmbH will choose the shipping method until expressly agreed otherwise.
d) Maiback GmbH is entitled to make partial deliveries, provided that this does not present substantial disadvantages to the customer. Any rights conferred by section 320 BGB (German Civil Code) are not affected.
e) In the event of force majeure or other unforeseeable circumstances beyond our control, such as difficulties in procuring materials, industrial disputes, operational disruptions, vandalism, official intervention, energy shortages, regardless of whether they occur at our plant or at our supplier, and which prevent us from fulfilling our delivery obligations, the delivery period shall be extended by the duration of the hindrance and taking into account an appropriate start-up period. If the hindrance is likely not to end within a reasonable period of time, we are entitled to withdraw, in whole or in part, from the contract without any obligation of subsequent delivery or compensation. Such a withdrawal does not affect our claims from partial deliveries made.
f) The customer’s claims for damages due to delivery delays as well as any claims for damages in lieu of performance that go beyond the limits specified in 5.g) are excluded in all cases of delayed delivery, even after expiry of any deadline for subsequent delivery set to us. This does not apply if liability is mandatory due to cases of intent, gross negligence or injury to life, body or health. The customer may only withdraw from the contract within the framework of statutory provisions if we are responsible for the delay in delivery. A change in the burden of proof to the detriment of the customer is not associated with the above provisions.
g) Upon our request, the customer is obliged to clarify, within a reasonable period of time, whether he will withdraw from the contract due to the delay in delivery or whether he insists on delivery.
h) If dispatch or delivery is delayed at the customer’s request by more than 1 month after notification of readiness for dispatch, we may charge the customer storage costs amounting to 0.5% of the price of the items to be delivered for each month or part thereof, but no more than 5% in total. The contracting parties are free to prove higher or lower storage costs.
i) In the case of distance selling, the risk of accidental loss and accidental deterioration of the sold goods will pass to the customer when the goods are handed over to the carrier.
j) First orders will only be delivered against advance payment.
k)If there objectively arise substantial deteriorations in the customer’s financial situation that would justify doubts about his solvency, Maiback GmbH is entitled to withhold its deliveries and services and to set the customer a reasonable period for an advance payment or the provision of securities of its choice. After expiry of this period, Maiback GmbH is entitled to withdraw from the contract.
l) If the customer does not meet his payment obligations, enforcement measures have been fruitless, the customer has stopped his payments or insolvency proceedings have been filed, Maiback GmbH is entitled to make the entire remaining debt from the contract due. In this case, Maiback GmbH is additionally entitled to demand advance payments or securities for all other contracts.
n) The customer is only permitted to set off any counter-claims if these claims are undisputed, recognised by Maiback GmbH or established by law. The assertion of a right of retention by the customer is excluded insofar as these claims are not based on the same contractual relationship.
o) Possible errors in the invoices of Maiback GmbH must be reported within 8 days after receipt of the invoice. After expiry, the invoice recipient is considered to have tacitly recognised the correctness of the invoice.
4. Retention of Title
a) Maiback GmbH reserves the ownership of the purchased item until receipt of all payments from the delivery contract. In case of a breach of contract by the customer, especially in case of default of payment, Maiback GmbH is entitled to take back the object of purchase. The taking back of a purchased item by Maiback GmbH constitutes a withdrawal from the contract. After taking back the purchased item, Maiback GmbH is authorised to sell it and any proceeds of that sale are to be set off against the customer’s liabilities, less reasonable selling expenses.
b) The customer is obliged to treat the purchased item with care; in particular, he is obliged to insure it sufficiently at replacement value at his own expense against damage caused by fire, water and theft. If maintenance and inspection work is required, the customer must carry it out in good time at his own expense.
c) The customer is entitled to resell the purchased goods in the ordinary course of business; however, he assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim as arising from the resale to his customers or third parties, regardless of whether the goods have been resold without or after processing. The customer retains the right to collect this claim even after the assignment. Our right to collect the claim ourselves remains unaffected. We undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds, is not in default of payment and in particular has not applied for opening settlement or insolvency proceedings or ceases payment. However, if this is the case, then we can demand that the customer discloses all assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
d) In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing, so that we can file suit pursuant to section 771 ZPO (German Civil Procedure Code). To the extent that the third party is not in the position to reimburse us all judicial and extra-judicial costs of proceedings pursuant to section 771 ZPO, the customer shall be liable to reimburse all losses incurred by us.
a) The contractual partner must check the goods for defects immediately after delivery. Complaints due to obviously defective or obviously deviating condition of the goods or due to delivery of obviously other goods than those ordered must be made to us in writing by the contractual partner immediately or at the latest within 3 working days after delivery or, if the defect could not be detected upon immediate inspection, within 1 week of discovery of the defect. If obvious defects are not notified in time and not in due form, the warranty shall lapse in this respect. Inspection and notification obligations pursuant to § 377 HGB [German Commercial Code] remain unaffected.
b) The warranty period is 1 year from the delivery of the goods. This shall not apply if the purchased item is usually used for a building and has caused the defect. All limitation periods in the case of a delivery recourse according to sections 478, 479 BGB, as well as in case of claims for damages due to the loss of life, physical injury or health shall remain unaffected and fully in force.
c) Defects of special items that are known to the customer at the time of conclusion are excluded from the warranty.
d) The presentation of the goods does not include any guarantee of properties, but is intended solely as a description of performance.
e) Claims for defects cannot be made in case of insignificant deviations from the agreed quality and/or an insignificant impairment of usability. Tolerances customary in trade or the industry do not entitle the customer to a notice of defects. The customer has to accept delivery quantities that deviate up to 10% in either way. For plastic articles and similar products, a relatively small number of defective goods is unavoidable for technical reasons and a fraction of up to 5% of the total number of items is not objectionable, regardless of whether the defect occurred in processing or in die casting.
f) In case of a justified and timely complaint, we reserve the right to first attempt a subsequent performance of our choice, i.e. rectification of the defect or free-of-charge replacement of defective goods, which the customer has to return, by new contractual goods (replacement). Only after two failed attempts at rectification, the customer may, at his discretion, withdraw from the contract or demand a reduction.
g) If the customer is otherwise entitled to claim compensation for a damage instead of performance based on a negligent breach of duty, our liability is limited to compensation for foreseeable, typically occurring damages.
h) In all other respects, Sec. 6 shall apply to claims for damages. Further claims based on material defects claimed by the customer against us and our vicarious agents, and claims other than those regulated under Sec. 5, are excluded.
i) If the customer objects to a delivery or parts thereof, no piece of the goods complained about may be used, processed or forwarded. If this does happen, the customer deprives us of our right to inspect the goods complained about and thus invalidates his complaint.
6. Limitation of Liability
a) Any further liability for damages other than that provided for in Sec. 5 is excluded, irrespective of the legal nature of the asserted claim. This applies in particular to claims for damages arising from negligence when entering into contract, other breaches of duty or tortuous claims for compensation for damage to property in accordance with § 823 BGB [German Civil Code].
b) The limitation according to 6.a) also applies if the customer demands the reimbursement of useless expenses instead of a claim for damages.
c) Insofar as Maiback GmbH’s liability for damages is excluded or limited, this also applies with regard to the personal liability of employees, representatives and vicarious agents of Maiback GmbH.
d) This shall not apply in cases of statutory liability, for example under the Produkthaftungsgesetz [German Product Liability Act], in cases of intent, gross negligence, injury to life, body or health, or breach of essential contractual obligations. This means that the limitation period will likewise not be shortened for claims for which liability is mandatory.
e) Claims for damages for the violation of essential contractual obligations are limited to the foreseeable damage typical for this contract up to the amount of sum insured by our liability insurance, that is, up to an amount of Euro 3,000,000.00 per claim, provided that this insured sum is in an appropriate relationship to the contractually typical risk of damage and provided that there is no intent or gross negligence or liability due to injury to life, body or health. A change in the burden of proof to the detriment of the customer is not associated with the above provisions.
7. Default of acceptance by the customer
a) If the customer is in default of acceptance or debtor’s default, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer at the time at which the customer is in default. In this case, we are also entitled to set a reasonable period of grace and, after the expiry of this period, either to take the unclaimed goods into storage ourselves at the expense of the customer and to demand storage charges in accordance with Sec. 3 i) or to store them at a forwarding agent. This shall not affect our rights to withdraw from the contract and claim damages.
b) Within the scope of a claim for damages, we can demand 15% of the agreed price as compensation without proof, unless the customer proves that no damage at all or a significantly lower damage than the lump sum has occurred.
a) The customer has to check corrected patterns for errors and return them with his declaration that they are ready for production. Maiback GmbH is not liable for errors overlooked by the customer. Corrections and modifications demanded by telephone need a written confirmation.
b) Should the customer demand extensive changes or other corrections in excess of typical corrections after a corrected sample has been returned, these will be invoiced according to working hours and material consumption. In cases where sending a corrected pattern is not demanded, the liability for errors shall be limited to gross negligence. The production of a sample will be invoiced even if an order is withdrawn.
c) For significant deviations in the quality of the material procured on behalf of the customer, we are liable only up to the amount of our own claims against our suppliers. In such a case, we are freed from our liability if we assign our claims against the subcontractor to the customer.
d) For the variability and deviation of the material as well as for the quality of rubber linings, coatings, impregnation, etc., we shall be liable only to the extent that the material’s defects were recognizable through proper examination before using them. For colour reproductions by all kinds of printing processes, minor colour variations within the same edition and between hard proof and production prints can materialise; those are not considered to be legitimate reasons for a complaint.
9. Marking and Usage Rights
Maiback GmbH reserves the right to place our company name on the back or on a suitable spot of the goods delivered. We also reserve the right to use articles produced on behalf of the customer as samples or for marketing purposes.
10. Liability for Links
Maiback GmbH hereby expressly dissociates itself from all contents of linked pages or graphics and does under no circumstances adopt them as its own. All violations of effective laws, customs or morals that are brought to the attention of Maiback GmbH will immediately be ended by deleting the offending links, graphics, posts or other linked content.
11. Choice of Law
The laws of the Federal Republic of Germany shall apply. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
12. Place of performance and jurisdiction
a) The place of performance for all contractual and legal claims is generally the registered office of Maiback GmbH in Allendorf/Lumda, unless otherwise stated in the order confirmation.
b) If the contractual partner is a merchant or a legal entity of public law, the exclusive place of jurisdiction for all disputes arising from this contractual relationship is the registered place of business of Maiback GmbH in Allendorf/Lumda. This also applies if the contractual partner has no general place of jurisdiction in Germany or if his domicile or usual place of residence at the time of action is unknown. Maiback GmbH may opt to file legal action against contractual partners with a registered office or residence outside of Germany at their residence or place of business instead.