General Terms and Conditions
FOR GOODS AND SERVICES of Mulitplex GmbH
1. General provisions
1) These General Terms and Conditions for Goods and Services (the “GTC”) shall apply to all contracts for the sale, supply, provision and/or production of goods and services (together the “Deliveries”) of Multiplex GmbH towards its contractual counterpart (the “Customer”). These GTC shall also apply to all future contracts with the Customer, even if Multiplex GmbH does not again expressly refer to their incorporation.
2) “Consumer” in the meaning of these GTC means every natural person who enters into a legal transaction for purposes that predominantly are outside his trade, business or profession. “Entrepreneur” in the meaning of these GTC means a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession. Unless specified otherwise, the term “Customer” in the meaning of these GTC includes both Consumers and Entrepreneurs.
3) Any contradicting or supplementary terms and conditions shall not become part of the contract, even if Multiplex GmbH is aware of the Customer’s intention of their incorporation, unless Multiplex GmbH has expressly agreed in writing to such incorporation.
2. Conclusion of Contracts
1) Any offer by Multiplex GmbH is non-binding, unless explicitly referred to as “binding” in written form. Multiplex GmbH shall be bound by such “binding” offers for a period no longer than 30 days.
2) The contract must be in writing.
3) Additional agreements as well as changes and amendments to the contract shall be effective only, if confirmed by Multiplex GmbH in writing.
3. Prices, Terms of Payment
1) All prices are quoted for delivery at Multiplex GmbH (“Ex Works”).
2) If the contract price is agreed to be a “gross” price (including statutory value-added tax), Multiplex GmbH may pass on to the Customer changes to the statutory value-added tax which enter into force after the conclusion of the contract during the contract term. In such case, the agreed contract price shall be amended accordingly.
3) The agreed purchase price is not subject to deductions. Instalments are due and payable as agreed upon. Delivery can not be demanded before the contract price has been paid in full.
4) The Customer shall be regarded in default with payment of the contract price without express notice of default if it does not affect payment within thirty days after the due date and receipt of an invoice or equivalent statement of payment.
If the Customer is a Consumer, this shall only apply if the Customer was made aware of this in the invoice of the statement of payment.
5) In case of default, the Customer must pay interest on the amount in default at the statutory interest rate. § 288 para. 5 of the German Civil Code remains unaffected.
6) If payment in instalments during the course of construction has been agreed and the Customer is in default of payment with any instalment, Multiplex GmbH has the right to suspend work until payment has been made. Any costs thereby incurred are to be borne by the Customer.
7) The Customer is not entitled to declare a set-off with counter-claims unless these counter-claims are undisputed or have been awarded by an unappealable title.
8) If the Customer does not perform duties of assistance or cooperation that are necessary for Multiplex GmbH to perform its own obligations and if this results in waiting time for production capacities (personnel or equipment) or additional expense for Multiplex GmbH, then Multiplex GmbH may claim from the Customer a reasonable increase of the contract price. The increase of the contract price shall, in particular, reflect the increase of the costs of Multiplex GmbH plus a reasonable profit margin. For the purpose of such calculation, Multiplex GmbH may refer to usual and reasonable lump-sum amounts such as, for example, day rates or similar.
The Customer may terminate the contract until complete performance of the agreed deliveries by Multiplex GmbH for convenience. In case of such termination, Multiplex GmbH may demand the agreed contract price but must allow a set-off of the expenses it saves because of such termination or acquires or wilfully fails to acquire from other use of his labour.
5. Retention of Title
1) Multiplex GmbH shall retain full ownership title to all products manufactured, installed, delivered or otherwise made available to the Customer until full payment of the contract price. If the Deliveries of Multiplex GmbH are separable, the retention of title shall only be waived if all claims in connection with the contract have been settled by the Customer. If the Customer requests a letter of guarantee for down-payments and if Multiplex GmbH transfers its securing ownership title in respect of a shipbuilding structure in order to demand a release of the guarantee, the rights of Multiplex GmbH in respect of the works are secured only by rights of retention and liens. If the Customer is default with payment, the lien for Multiplex GmbH shall remain in force if the works are removed from the premises of Multiplex GmbH.
2) If the retention of ownership title is prejudiced as a consequence of combination, production, or on-sale to a third party, the ownership title shall be replaced by the newly fabricated chattel or by the claim that has arisen for the Customer from the on-sale. The Customer undertakes to notify Multiplex GmbH without specific request and without delay of such on-sale. The Customer hereby assigns all claims arising out of such on-sale to Multiplex GmbH which hereby accepts the assignment.
3) In the event that a third party takes hold of the product, the Customer is obliged to inform the third party about the ownership title of Multiplex GmbH and to promptly inform Multiplex GmbH of the incident.
4) If deliveries are delivered prior to full payment of the contract price, the Customer is obliged to properly insure the Deliveries at Customer’s own expense during the time for which the ownership title is retained and to produce evidence of the insurance to Multiplex GmbH upon delivery of the Deliveries. The Customer hereby assigns all claims against the insurer to Multiplex GmbH which hereby accepts the assignment.
6. Delivery Date
1) If a time period for delivery has been agreed, such period shall commence with the conclusion of the approval of the design drawings by the Customer and the Customer’s complete performance of all necessary duties of assistance and cooperation.
2) In the event that the extent of the Deliveries changes or increases with regard to the contract on demand by the Customer or after consultation with the Customer, the agreed time period becomes invalid. The Customer may however demand that a new time for delivery be fixed, which takes the changes or increase into account.
3) The Customer may not demand compliance with the agreed time period if the Customer does not provide proper assistance in accordance with the Appendix to the contract at the time stipulated, or – if such time is not agreed – upon written request by Multiplex GmbH. The same applies if the Customer is in default with its payment obligations.
4) If compliance with the obligations is obstructed by force majeure, strike and/or lock-out at Multiplex GmbH or its suppliers, Multiplex GmbH shall be released from its obligation to keep the time period for delivery and – until the force majeure ends – from fulfilment of the contract.
The same applies if the Seller or its suppliers are unable to obtain the necessary materials for production, if and to the extent this was unpredictable for Multiplex GmbH, it is significant with regard to obligations of Multiplex GmbH and it is not based upon a fault of Multiplex GmbH, including the choice of suppliers. Multiplex GmbH is however obliged to properly inform the Customer about such supply contracts, if practical.
1) The delivery takes place “ex factory” Multiplex GmbH.
2) The costs for shipping the products on demand by the Customer, including package and loading, are to be paid by the Customer; Multiplex GmbH is obliged to effect shipment only after the purchase price and said shipping costs have been paid in full.
3) If the product is shipped to a Customer acting as Entrepreneur, the risk of incidental loss, damage or other deterioration of the product passes to the Entrepreneur as soon as the product is handed over in any event upon dispatch from the Seller.
4) If the Customer is a Consumer, the risk of incidental loss, damage or other deterioration of the product passes to the Consumer as soon as it is being handed over to the Consumer. The risk also passes to the Customer, if the Customer is in default of acceptance regarding the delivery.
5) If the Customer does not explicitly prescribe the route of transport, the mode of transportation, and/or the type of package, Multiplex GmbH may use its own discretion to make such choices.
6) Multiplex GmbH shall not be responsible for damages that result out of normal negligence in connection with dispatching the product. Furthermore, Multiplex GmbH shall not be responsible for the timely arrival of the shipped product.
7) Multiplex GmbH will only take out transport insurance for the product upon express request by the Customer and only in the Customer’s name and for the Customer’s account.
8) It is the Customer’s obligation initiate necessary customs procedures in its own responsibility and at its own costs.
1) Multiplex GmbH must make available the Deliveries to the Customer free from defects upon delivery. The Deliveries are free from defects, if they are in conformity with the agreed properties.
2) If a defect is caused by the Customer’s specification, or upon the Customer’s request, or by products or materials provided or requested by the Customer or by other actions of the Customer, Multiplex GmbH shall not be liable for it. This shall also apply for defects and other deficiencies that are caused by the design documents of the Customer or the Customer’s design engineer.
3) The Customer must inform Multiplex GmbH of defects in writing. The Customer must provide a description of the defect and the product parts affected by the defect. The notification must be made in a way that Multiplex GmbH can take remedial measures without a survey of the defect.
4) In case of a defect, the Customer must grant Multiplex GmbH the opportunity to remedy the defect. The Customer must set Multiplex GmbH a reasonable deadline to remedy the defect. In case that the defect emerges only after the product has been moved abroad and that remedial action must be taken there, the deadline to remedy the defect is at least 6 weeks, calculated as from receipt of the written notification of the defect.
5) If the defect emerges a further time on the same component or unit, Multiplex GmbH has the right to remedy the defect a second time. If this fails, the Customer can choose to claim a reduction of the contract price or rescind the contract. In case of minor non-conformities, in particular in case of minor defects, the Customer is however not entitled to rescind the contract. A defect is to be regarded “minor”, if the costs to remedy it would be below 10 per cent. of the total contract price. If the defect has effect only in relation to a separable component or unit, the right to rescind only exists in relation to this component or unit.
6) In the context of remedial works, Multiplex GmbH must bear all material and personnel costs in relation to the remedial works. Travel and accommodation expenses for remedial works that are executed outside the European Union must be borne by the Customer. The travel expenses shall also cover the necessary travel times.
7) In the context of remedial works, Multiplex GmbH may instruct a third party to remedy the defect.
8) The Customer’s warranty rights expire with regard to any parts that have been modified by the Customer or a third party without the prior consent by Multiplex GmbH. The warranty rights furthermore expire if the Customer does not present the defective parts in the condition they were in, when the defect was first detected. They also expire insofar as the defective part originates from the production of a certain third party and the Customer refuses replacement with a substantially similar part produced by another third party.
9) Multiplex GmbH does not give any warranty with respect to damages that have been caused due to the following reasons:
• unfit or improper use or handling,
• omitted installation or operation by the Customer or a third party,
• normal wear and tear,
• faulty or negligent care – especially excessive strain -,
• use of equipment or parts which do not conform to the users manual,
• chemical, electrochemical, and/or electrical influences, as long as these do not result from a fault by Multiplex GmbH.
10) Multiplex GmbH does not give any warranty if and to the extent that it complied with special requests by the Customer regarding the construction or the use of certain materials.
11) Mulitplex GmbH does not assume any guaranteed undertaking towards the Customer. This is without prejudice to guarantees provided by third-party manufacturers.
9. time limits for warranty claims
1) For Entrepreneurs, the time limit for warranty claims (warranty period) is one year from the delivery of the Deliveries.
2) For Consumers, the time limit for warranty claims (warranty period) is two years from the delivery of the Deliveries.
3) The above time limits are not applicable, if the Customer has not notified Multiplex GmbH of the defect in time.
Entrepreneurs must notify Multiplex GmbH in writing of apparent defects within two weeks after delivery of the Deliveries. For Consumers, the time limit is two months. In order to protect this time limit, the notice must at least have been sent out.
1) The liability of Multiplex GmbH for normal negligence (i.e. negligence below the level of gross negligence) is limited to such damages that were reasonably foreseeable at the time the contract was concluded. The same applies to normal negligence by legal representatives or assistants of Multiplex GmbH. If the Customer is an Entrepreneur, the liability of Multiplex GmbH for normal negligence regarding an immaterial contractual obligation is excluded.
2) The above exclusions to liability shall not apply to the Customer’s claims according to the German Law on Product Liability (ProdHaftG). The exclusions do also not apply in relation to liability of Multiplex GmbH for loss of life, personal injury or health deterioration.
11. DATA PROTECTION
Multiplex GmbH collects and processes personal data in accordance with the statutory provisions. The privacy statement of Multiplex GmbH can be downloaded at https://multiplexgmbh.com/privacy- policy/.
1) If the Customer is Entrepreneur, all disputes between the Seller and the Customer arising out of or in connection with the contract which incorporates this GTC, shall be finally adjudicated under the rules of arbitration of the Deutscher Boots- und Schiffbauer-Verband e.V. (DBSV), excluding the jurisdiction of the ordinary state courts. The place of arbitration is Bremen, Germany.
2) This contract is subject to the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
3) If the Customer is a Consumer and does not have a domicile within the Federal Republic of Germany or if the domicile or usual abode is unknown at the commencement of court proceedings, the competent courts at the place of business of Multiplex GmbH shall have exclusive jurisdiction over any and all disputes arising out of or in connection with the contract.
4) Place of performance shall be the place of business of Multiplex GmbH.
5) If any provision of the contract including these GTC is or becomes invalid or unenforceable, the remaining provisions shall remain in full force and effect. The invalid or unenforceable provision shall be replaced by a provision that most closely approximates the economic intent of the invalid or unenforceable provision.