MARBURGER TAPETENFABRIK J. B. Schaefer GmbH & Co. KG, 35274 Kirchhain
General Terms and Conditions of Sale and Payment as of December 1, 2020
1. General
1.1. All deliveries and sales to entrepreneurs within the meaning of § 14 BGB (German Civil Code), hereinafter referred to as the “Buyer,” are exclusively based on the following terms and conditions, even if the Buyer refers to other conditions in their order or confirmation letter. Deviating, conflicting, or supplementary general terms and conditions of the customer will only become part of the contract if we explicitly agree to their validity in writing. This requirement for consent also applies if we conclude contracts with the customer while being aware of the customer’s terms and conditions. The precedence of individual agreements remains unaffected by this.
1.2. These terms and conditions also apply to future deliveries and sales in ongoing business relationships without the need for a new submission of the terms or another reminder. The conditions are made available on our website (www.marburg.com) in the currently applicable version.
2. Prices, Surcharges, and Purchase Quantities
2.1. The prices are understood in EURO per wallpaper roll ex works, including packaging, excluding VAT, which is applicable at the time of delivery. Orders from the Buyer that are independent of our offers may be accepted by us in writing or by delivery within 7 days after receipt.
2.2. A batch is considered to be the quantity specified in the price list. Orders below the batch quantity are subject to an industry-standard room surcharge.
3. Sample Material / Individual Rolls
3.1. Sample material is only delivered in standard dimensions. Sample rolls will be invoiced separately.
3.2. Individual rolls from batch or room deliveries will not be accepted for return.
4. Order Acceptance and Delivery Time
4.1. All prices offered, including price indications on sections or sample cards, are non-binding until we provide explicit confirmation. Side agreements or any special arrangements require written form.
4.2. For orders, the Buyer bears the burden of proof for correct transmission.
4.3. Delivery dates are non-binding unless we have expressly agreed on their binding nature. We are allowed to make partial deliveries according to our production capacity.
4.4. Orders for items from discontinued collections are accepted by us under the condition that stock from that collection is still available. In case of doubt, the discontinuation date of the collection listed in the price list applies.
4.5. If we are in default of delivery according to legal regulations, a reminder from the Buyer is always required. In this case, the Buyer may claim a flat-rate compensation for the delay damage. The damage flat rate is 0.5% of the net price (delivery value) for each full calendar week of delay, but no more than 5% of the delivery value of the delayed goods. We reserve the right to prove that the Buyer has suffered no damage or only a significantly smaller damage than the above-mentioned flat rate.
4.6. If the Buyer is in default of acceptance, fails to perform a required action, or if our delivery is delayed for other reasons attributable to the Buyer, we are entitled to claim damages, including additional costs (e.g., storage fees). We will charge a flat rate of EUR 50 per calendar day, starting from the delivery date or, in the absence of a delivery date, from the notification of the readiness for dispatch of the goods. The proof of higher damages and our legal claims (especially reimbursement of additional expenses, appropriate compensation, cancellation) remains unaffected; the flat rate will be credited to any further monetary claims. The Buyer may provide proof that no damage or a substantially smaller damage than the above-mentioned flat rate has occurred.
5. Delivery
5.1. Deliveries are made ex works at the Buyer’s risk and expense. Returns are also at the Buyer’s expense unless there is a valid complaint. Insurance of the shipment is only arranged upon special request and at the Buyer’s expense.
5.2. For orders with a value of at least EUR 410.00 per order for a complete delivery to an address within the domestic territory, we will cover the basic German freight charges to the recipient’s address. The value of the shipment is determined by the number of rolls multiplied by the net invoice price. The method and route of transport are selected by us at our discretion.
5.3. For parcel, postal, and express shipments, the costs will be charged unless the shipments can be delivered free of charge.
6. Payment
6.1. Our invoices are due for payment within 10 days net from the invoice date. Advertising materials, sample material, including sample cards, are payable net.
6.2. Payments with discharge effect can only be made to one of our business accounts. Our representatives are never authorized to collect payments. Payment by cheque or bill of exchange requires our explicit approval. Discount charges and expenses are borne by the debtor.
6.3. Discount is only granted for cash payments on the net goods amount remaining after deductions. The discount amount is shown in the invoice. Cash payment is only considered valid if the payment is received on time, not when cheques are provided. The right to discount only applies if, at the time of payment, only invoices that qualify for discount are open.
6.4. The Buyer pays default interest at a rate of 8% above the base rate; we reserve the right to claim further damages. Payments from the Buyer will first be applied to costs and interest, and the remainder according to § 366 para. 2 BGB.
6.5. We reserve the right to assign claims that have not been paid within 60 days after maturity to our collection agent.
6.6. The Buyer may not offset or claim a right of retention unless their claims have been legally established.
6.7. If we become aware of a significant deterioration in the Buyer’s financial situation or if the Buyer defaults on payment, we may immediately demand payment of all outstanding invoices, including those not yet due.
7. Retention of Title
7.1. All goods delivered by us remain our property until all our current, conditional, or future claims against the Buyer have been settled. In the case of cheque or bill of exchange payments, the Buyer acknowledges the retention of title in our favor until the cheque/bill of exchange is redeemed.
7.2. The Buyer may dispose of the goods in the course of regular business, particularly by selling them. Any claims arising from such sales are hereby assigned to us as security in the amount of the purchase price to be paid. The Buyer is authorized and obligated to collect the claims assigned to us as long as we have not revoked this authorization. The authorization expires without explicit revocation if the Buyer stops making payments to us, or at the latest 14 days after the invoice becomes due. The Buyer is not permitted to make any other dispositions over the retained goods or the claims assigned to us. In particular, the Buyer may not export the goods without our consent before acquiring full ownership of the goods. In case of seizures or other third-party interventions, the Buyer must notify us of our security rights, mark the goods as our property, and immediately inform us.
7.3. We are contractually bound by obligations and promises with business partners in countries outside the European Union (third countries). Therefore, the Buyer may not take any actions to distribute the goods to third countries without our consent.
7.4. If the Buyer defaults on payment obligations to us or violates a duty arising from the agreed retention of title, the entire outstanding debt becomes immediately due. In this case, we are entitled to demand the return of the retained goods and collect them. The Buyer has no right to possession in this case. Additionally, we are entitled to inform the Buyer’s customers of the assignment of their claims to us and collect the claims. We are also entitled to demand the handover of corresponding documents (e.g., debtor lists).
7.5. We are obligated to release the securities available to us according to the above provisions to the extent that the value of the retained goods/assigned claims exceeds the secured claims by 20%.
7.6. The enforcement of the retention of title is not considered a withdrawal from the contract. When returning goods, the seller may make price reductions for their costs.
7.7. The Buyer is obliged to insure the goods against theft, fire, and water damage if payment is not made within 30 days. Proof of insurance must be provided upon request.
8. Discount
8.1. If the Buyer is granted discounts or bonuses as part of special agreements, the assignment of claims to discounts/bonuses is excluded.
8.2. Bonuses are only granted on the selling prices after all discounts have been deducted.
8.3. Discounts given by us as an advance for sales of current or future collections, such as sample roll discounts and amortizations, lower sample roll prices, may be reclaimed if the Buyer defaults on their payment obligations.
9. Right to Cancel
9.1. In contracts for the delivery of custom-made products, we have the right to cancel unilaterally in cases where the fulfillment of the contractual obligations is not possible for production technical reasons or if there is a violation of public morality. Such cases may include (but are not limited to):
- Images that violate criminal law (racist, discriminatory, or pornographic depictions)
- Images that violate personality and/or copyright rights
- Other images that contradict ethical and moral values
- A qualitatively insufficient or defective original motif
9.2. In the event of a cancellation, we will inform the Buyer in writing (e.g., letter, fax, email) without providing reasons. We will then either refund the Buyer the already paid purchase price or offset it against other claims.
10. Third-Party Copyrights
If the Buyer provides us with texts and/or images for the production of goods, they must ensure that third-party rights, especially copyright, are not violated. Only texts and images for which the Buyer has the necessary usage, distribution, and reproduction rights may be used.
10.1. We are indemnified by the Buyer against all third-party claims arising from the infringement of copyrights or other industrial property rights.
10.2. The Buyer must inform us immediately if third parties assert claims regarding the violation of protection rights. In legal disputes, the Buyer bears all costs.
11. Complaints
11.1. Data, quality descriptions, specifications, or other information provided by us regarding usability or properties are non-binding unless we have confirmed them in writing. Public statements, promotions, or advertisements by us do not constitute binding statements regarding the properties or intended use.
11.2. Before use/reprocessing, the Buyer must ensure that the delivered goods meet the required quantity, quality, and other properties in accordance with §§ 377, 378 HGB (German Commercial Code) and are suitable for their intended purpose. If a defect or quantity discrepancy is found, the Buyer must notify us immediately, but no later than 14 days after receiving the shipment. After this period, the goods are considered approved. Hidden defects must be reported to us immediately in writing. To substantiate the complaint, one of the disputed wallpaper rolls with the roll label must be sent in. If the goods have already been processed, at least parts of the goods that show the defect, along with the roll label, must be sent.
11.3. Minor deviations in quality, color, shade, purity, and strength typical in the production of wallpaper rolls do not constitute defects. Deviations in dimensions and weights of individual wallpaper rolls of +/- 3% are considered industry standard. The processing of the wallpaper rolls must follow our specifications and adhere to industry-standard guidelines.
11.4. The warranty period is 1 year from the delivery of the goods. No legal warranties are provided by us. If there are defects in processing instructions, we are only obligated to provide a defect-free instruction, and this only if the defect in the processing instructions prevents the proper processing of the wallpaper rolls.
11.5. The Buyer is entitled to request subsequent performance. If the subsequent performance fails, the Buyer can generally demand a reduction in the purchase price (reduction) or cancellation of the contract (withdrawal). However, the Buyer has no right of withdrawal in cases of minor contract violations, especially in cases of minor defects.
11.6. If the Buyer withdraws from the contract after unsuccessful subsequent performance, they have no claim for damages due to the defect. If the Buyer makes claims for damages after unsuccessful subsequent performance, the goods remain with the Buyer if this is reasonable for them. The damages are limited to the difference between the purchase price and the value of the defective goods.
11.7. If the Buyer has received defective goods from us, which they have incorporated or attached to another item according to their nature and intended use, and they can request subsequent performance from us according to these general terms and conditions, we are only obligated to reimburse the Buyer for the costs of removing the defective goods and installing or attaching the repaired or delivered defect-free goods if they have followed the “Guidelines for Wall Coverings Before, During, and After Processing” from Leaflet No. 7 (status: November 2013).
12. Exclusion and Limitation of Liability
12.1. Claims for damages by the Buyer due to a defect expire 1 year after delivery of the goods. This does not apply in cases of gross negligence by us.
12.2. In cases of slight negligence, our liability is limited to the foreseeable, typical direct damage according to the nature of the goods. This also applies to slight negligence by our legal representatives, employees, and other agents, as well as subcontractors. The above-mentioned liability limitation does not apply in case of a willful breach of a significant contractual obligation and for warranty declarations according to §§ 444, 639 BGB.
12.3. Liability is excluded for defects that arise due to external influences and factors that we are not responsible for (e.g., improper processing, storage). The same applies to defects due to normal wear and tear.
12.4. We are not liable for slight negligence in the breach of non-essential contractual obligations towards companies. Claims for damages according to §§ 280 para. 2, 286 BGB are limited to a maximum of 5% of the purchase price.
12.5. The above liability limitations do not apply to claims from product liability. The liability limitations do not apply to unaccountable bodily injury, health damage, or loss of life of the customer and their agents.
13. Written Form
Legally relevant declarations and notifications that the Buyer must submit after the conclusion of the contract (e.g., setting deadlines, defect notifications, withdrawal, or reduction) must be in writing to be effective.
14. Business Disruption
We are released from our obligation to deliver on time due to any circumstances we are not responsible for that cause a significant business disruption. If the disruption lasts longer than 2 months, either party may withdraw from the contract.
15. Data Protection
15.1. Personal data, which is not subject to processing under a contract within the meaning of Art. 28 GDPR, will be processed by us as the controller within the framework of the applicable legal regulations.
15.2. We take all necessary measures required by applicable legal regulations regarding this data within our area of responsibility. The goal of these measures is to achieve the following protection objectives: Availability, confidentiality, integrity, transparency, non-linkability (as technical assurance of purpose limitation), and intervenability (as technical design of procedures for the exercise of the rights of the data subjects).
16. Place of Performance and Jurisdiction
16.1. The place of performance for delivery and payment and both parties’ jurisdiction is our business location.
16.2. If our rights are assigned to our collection agent, the location of the collection agent is the jurisdiction. We or our collection agent may also file a claim at the Buyer’s location.
17. Miscellaneous
17.1. German law applies exclusively; the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
17.2. If any of the above provisions are invalid, the validity of the remaining provisions remains unaffected. We can replace the invalid provision with an admissible regulation that achieves the purpose of the invalid provision to the greatest extent.