1. Scope of application, formal requirements
(1) These General Terms and Conditions of Business (hereinafter: “GTC”) apply to all agreements between us, the company
Murdotec Kunststoffe GmbH & Co. KG,
represented by the
Murdotec Kunststoffe Beteiligungsgesellschaft mbH
Managing Directors: Detlev Höhner, Andreas Balla, Felix Tilse
Registered office of the company: Dortmund – Registration court of Dortmund, HRA 14026
VAT- ID no.: DE 216161856
Phone +49 231 4257798-0
Fax +49 231 4257798-29
and you as our Customer (hereinafter also “Purchaser”).
(2) Our GTC shall apply exclusively; we do not acknowledge any terms and conditions that conflict with or deviate from our GTC unless we have expressly agreed to their application. Our GTC shall also apply if we carry out the delivery to the Customer without reservation in the knowledge of conflicting or deviating conditions of the Customer.
(3) Unless otherwise agreed, the GTC shall apply in the version valid at the time of the Customer's order.
(4) These GTC apply only to orders placed by Customers who are entrepreneurs within the meaning of section 310 (1) BGB (German Civil Code). An entrepreneur is any natural or legal person or partnership with legal capacity who, when concluding the contract, acts in the performance of his commercial or independent professional activity.
(5) Until further notice, the use of our online store is limited to orders from entrepreneurs with registered office/domicile (billing address) and delivery address in Germany. In all other cases, we (still) ask for direct contact by telephone, fax, e-mail or comparable channels.
(6) Contract language for the online store is German.
(7) Legally relevant declarations and notifications of the Purchaser with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal, etc.) shall be made at least in text form (section 126b BGB German Civil Code). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the person making the declaration, shall remain unaffected.
2. Quotes and conclusion of contract
(1) Our quotes are non-binding and subject to change. The order of the goods by the Purchaser is considered a binding offer of contract. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within two weeks of its receipt by us (order confirmation).
(2) The presentation and advertising of articles in our online store do not include an offer to conclude a purchase contract. The Purchaser can select products from our range of goods and collect them by clicking the button "add to cart". By sending an order via the online store by clicking on the button "order subject to payment", the Purchaser places a legally binding order to which it is bound for a period of two (2) weeks. Before sending the order, the data can be changed and viewed at any time. However, the order can only be placed and transmitted if the Purchaser accepts these GTC as part of the contract by clicking on the button "I have read and agree to the GTC and data protection provisions" and "I confirm that I have read and understood the product-specific data sheets and product handling information".
We then send the Customer an automatic confirmation of receipt by e-mail, in which the order is listed again. The automatic confirmation of receipt merely documents that the order has been received by us and does not constitute acceptance of an offer. The contract is not concluded until we issue the declaration of acceptance, which is sent with a separate e-mail (order confirmation). We store the text of the contract (consisting of the order, GTC and order confirmation) in compliance with applicable data protection laws and make it available to the Customer if required.
3. Prices, price increases
(1) For orders outside the online store, the following shall apply: Our prices in quotes and order confirmations shall be understood as EUR net prices FCA (at our registered office) plus any value added tax at the statutory rate.
(2) When ordering via the online store, we deliver the goods free receiving point. The additional shipping costs incurred for this are staggered according to the weight of the goods (see our FAQ); they are shown separately in the order mask. From a goods weight of over 300kg, the delivery is free of shipping costs.
(3) If, after conclusion of the contract, duties or charges that burden the movement of goods (e.g. customs duties, freight charges, taxes) increase, we shall be entitled to make corresponding price adjustments if this was not foreseeable at the time of conclusion of the contract. The same shall apply in the event of unforeseeable wage increases under collective bargaining agreements and in the event of price changes by sub-suppliers which only come into effect after conclusion of the contract and of which we were not previously aware.
4. Terms of payment, default in payment, set-off, retention
(1) For orders outside the online store, payment is made in advance. In individual cases, especially for existing Customers, payment by invoice is possible.
(2) In our online store, the Customer can choose to pay by credit card, prepayment, Paypal, direct debit, immediate transfer via Klarna ("Sofort by Klarna") or via other offered payment options within the ordering process.
(3) When paying by credit card, the purchase price is reserved on the credit card at the time of the order. The actual debit of the credit card account of the Purchaser takes place at the time we ship the goods to the Purchaser. In the case of advance payment, we will provide the Purchaser with our bank details in the order confirmation. The invoice amount is to be transferred to our account within 10 days of receipt of the order confirmation. In the case of payment in advance, we will not begin processing the order until payment has been received in full. In case of a payment via PayPal, the payment processing is carried out by the company PayPal (Europe) S.à r.l. & Cie, S.C.A., based in Luxembourg.. In the case of payment by direct debit, the Customer shall bear the costs incurred resulting from a chargeback of a payment transaction due to a lack of funds in the account or due to incorrect bank details provided by the Customer. For the payment “Sofort by Klarna”, the following applies: After placing the order, the Customer is redirected to the website of the online provider Sofort GmbH. In order to be able to pay the invoice amount via Sofort, the customer must have a bank account activated for online banking, legitimize himself accordingly and confirm the payment instruction to us. The Customer will receive further instructions during the ordering process. The payment transaction is carried out immediately afterwards by Sofort by Klarna and the Customer's account is debited.
(4) In mutual agreement, especially towards existing customers, we grant the possibility of payment by invoice. Our invoices are due within 30 days net without deduction from the date of invoice.
(5) Unless otherwise agreed, no cash discount shall be granted.
(6) We are entitled at any time – also within the framework of an ongoing business relationship – to carry out a delivery in whole or in part only against advance payment. We shall issue a corresponding declaration of reservation to the Customer with the order confirmation at the latest. Upon expiry of the reasonable payment period specified therein, the Customer shall immediately be in default.
(7) If the Customer is in default, we shall be entitled to demand interest on arrears in the amount of 9 percentage points above the respective base interest rate. We shall be entitled to claim further damage caused by default against appropriate proof.
(8) In the event of default in payment or justified doubts as to the solvency or creditworthiness of the Customer, we shall be entitled – without prejudice to our other rights – to demand securities or advance payments for outstanding services and to declare all claims arising from the business relationship immediately due and payable. If the Customer refuses to provide security or does not make an advance payment after a reminder, we shall be entitled, at our discretion, to withdraw from the contract and/or to demand compensation for damages due to non-performance.
(9) The Customer shall only be entitled to rights of set-off or retention insofar as his claim has been legally established or recognized by us. However, the Customer shall be entitled to set-off against our claims if it asserts notices of defects or counterclaims arising from the same purchase contract.
(10) We shall have the right to set off any claims we may have against the Customer even if our claim is not yet due. In this case, we will reimburse the Customer for the difference in interest at the rate of 5% p.a.
(11) The Customer shall only be entitled to exercise a right of retention insofar as its counterclaim is based on the same contractual relationship.
5. (Partial) Delivery, availability of goods, delivery time and obstacles to delivery, delay in delivery and acceptance
(1) Unless otherwise agreed, we determine the type of packaging.
(2) If no copies of the product selected by the Customer are available at the time of the Customer's order, we will inform the Customer of this without undue delay in the order confirmation. If the product is permanently not available, we will refrain from issuing a declaration of acceptance. A contract is not concluded in this case.
(3) If the product designated by the Customer in the order is only temporarily unavailable, we will also inform the Customer of this without undue delay in the order confirmation.
(4) The delivery time will be stated by us in the order confirmation. Delivery times are given in weekly or daily dates. These are approximate delivery times. They are only binding if a specific deadline or fixed date is expressly promised or agreed.
(5) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we will inform the Purchaser of this without undue delay and at the same time provide the expected new delivery deadline. If the performance is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the Purchaser. A case of non-availability of the performance in this sense shall be deemed to be in particular the late delivery of supplies to us, if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in the particular case.
(6) Disruptions in business operations for which we are not responsible, in particular strikes/work stoppages and lockouts as well as cases of force majeure which are based on an unforeseeable event and/or an event for which we are not responsible and which lead to serious operational disruptions (this also applies to our sub-suppliers), shall extend the delivery period in accordance with the duration of such obstacles. If these exceed a period of six weeks, both parties shall be entitled to withdraw from the contract with regard to the scope of performance affected. Then there are no other mutual claims.
(7) We are entitled to make partial deliveries insofar as these are reasonable for the Purchaser.
(8) The Purchaser may not refuse to take our deliveries due to insignificant defects.
(9) If the Purchaser is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Purchaser is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). In this case, we charge a lump-sum compensation of 0.5% of the net order value per calendar day, but not more than 10% of the net order value, beginning with the delivery deadline or – in the absence of a delivery deadline – with the notification that the goods are ready for shipment. Proof of higher damages and our statutory claims/rights (in particular compensation for additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be counted towards further monetary claims. The Purchaser shall have the right to prove that we have incurred no damage at all or that the damage is less than the aforementioned lump sum.
6. Scope of delivery, advice/information, materials provided by the Purchaser
(1) The scope of delivery is determined by our written order confirmation. We reserve the right to over- or under-deliver up to 10% of the ordered quantity in relation to the weight of the goods.
(2) . Insofar as the quality of the product has been bindingly agreed with the Purchaser, changes by us shall remain permissible insofar as they are made on the basis of mandatory legal provisions and are reasonable for the Purchaser. In the event of unreasonableness, the Purchaser shall have the right to withdraw from the contract. Further claims of the Purchaser are excluded.
(3) Insofar as we provide technical information or act in an advisory capacity and the information or advice is not expressly part of the contractually agreed scope of services, this shall be done free of charge and to the exclusion of any liability with the exception of intent.
7. Transfer of risk
(1) For orders outside the online shop, the following applies: Unless otherwise agreed, our delivery will be FCA (at our registered office). In this case, the risk of accidental loss and accidental deterioration shall pass to the Purchaser upon handover of the respective product to the forwarding agent, the carrier or the person designated for execution of the delivery by the Purchaser.
(2) For deliveries based on orders placed via the online shop, the risk of accidental loss and accidental deterioration shall pass to the Purchaser upon delivery.
8. Reservation of title
(1) We are entitled to have a reservation of title to the delivered goods entered in the reservation of title register at the Customer's registered office until all our claims against the Customer have been satisfied in full. The Customer is obliged to cooperate in the registration and must inform us immediately if it or the goods change their registered office or location.
(2) The objects of our deliveries (reserved goods) shall remain our property until all claims to which we are entitled against the Customer from the business relationship have been fulfilled. If the value of all security interests to which we are entitled exceeds the amount of all secured claims by more than 10%, we shall release a corresponding part of the security interests at the request of the Customer; we shall be entitled to choose between different security interests when releasing the security interests.
(3) During the existence of the reservation of title, the Customer is prohibited from pledging or transferring ownership by way of security; resale is only permitted in the ordinary course of business and only on condition that the reseller receives payment from its customer or makes the reservation that ownership does not pass to the customer until the customer has fulfilled its payment obligations.
(4) If the Customer resells goods subject to retention of title, he hereby assigns to us by way of security his future claims against his customers arising from the resale together with all ancillary rights – including any balance claims – without the need for any further special declarations. If the goods subject to retention of title are resold together with other items without an individual price having been agreed for the goods subject to retention of title, the Customer shall assign to us that part of the total price claim, which corresponds to the price of the goods subject to retention of title invoiced by us.
(5) a) The Customer is permitted to process the goods subject to retention of title or to mix or combine them with other objects. The processing is done for us. The Customer shall keep the resulting new item for us with the due care of a prudent businessperson. The new item shall be deemed to be goods subject to retention of title.
b) We and the Customer already agree now that in the event of combination or mixing with other items not belonging to us, we shall in any case be entitled to co-ownership of the new item in the amount of the share resulting from the ratio of the value of the combined or mixed goods subject to retention of title to the value of the other goods at the time of combination or mixing. The new item shall be deemed to be goods subject to retention of title to this extent.
c) The provision on the assignment of claims pursuant to the preceding paragraph (3) shall also apply to the new item. However, the assignment shall only apply up to the amount corresponding to the value of the processed, combined or mixed reserved goods invoiced by the Customer.
d) If the Customer combines the goods subject to retention of title with real estate or movable property, it shall also assign to us by way of security its claim to which it is entitled as remuneration for the combination, including all ancillary rights, in the amount of the ratio of the value of the combined goods subject to retention of title to the other combined goods at the time of the combination.
(6) Until revoked, the Customer is authorised to collect assigned claims from the resale. In the event of good cause, in particular default in payment, suspension of payment, opening of insolvency proceedings, protest of a bill of exchange or justified indications of over-indebtedness or imminent insolvency of the Customer, we shall be entitled to revoke the Customer's authorisation to collect. In addition, we may, after prior warning and observance of a reasonable period of time, disclose the assignment by way of security, realise the assigned claims and demand the disclosure of the assignment by way of security by the Customer to its customers.
(7) In the event of seizure, confiscation or other dispositions or interventions by third parties, the Customer must notify us immediately. If a justified interest is substantiated, the Customer shall immediately provide us with the information required to assert our rights against its customer(s) and hand over the necessary documents.
(8) In the event of breaches of duty by the Customer, in particular in the event of default in payment, we shall be entitled to withdraw from the contract in addition to taking back the goods after the unsuccessful expiry of a reasonable deadline set for the Customer to perform; the statutory provisions on the dispensability of setting a deadline shall remain unaffected. The Customer is obliged to surrender the goods. The taking back or assertion of the reservation of title or the seizure of the goods subject to reservation of title by us shall not constitute a withdrawal from the contract unless we expressly declare such withdrawal.
9. Warranty, liability, limitation period
9.1 Material defects and defects of title
(1) The statutory provisions shall apply to the rights of the Purchaser in the event of material defects and defects of title, unless otherwise stipulated in these GTC. This does not affect section 445a BGB (German Civil Code).
(2) If the delivered item is defective, we may first choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering a defect-free item (replacement). Our right to refuse subsequent performance under the statutory conditions remains unaffected.
(3) We are entitled to make the subsequent performance owed dependent on the Purchaser paying the purchase price due. However, the Purchaser shall be entitled to retain a reasonable part of the purchase price in relation to the defect.
(4) The Purchaser must give us the time and opportunity necessary for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the Purchaser shall return the defective item to us in accordance with the statutory provisions. Upon request, we shall reimburse the Purchaser for the expenses demonstrably necessary and reasonable for the purpose of subsequent performance, in particular transport, travel, labour and material costs. If these presumably exceed the expenses usually required for the removal of the defective item and the installation or fitting of the repaired or delivered item free of defects and the dispatch of the defective item, this must be notified to us together with the notice of defect.
(5) Claims of the Purchaser for damages or reimbursement of wasted expenditure shall also exist in the case of defects in accordance with clause 9.4 only; otherwise, they shall be excluded.
9.2 Exclusion of warranty
(1) The Purchaser shall lose any warranty claim if it fails to comply with the statutory obligations to inspect and give notice of defects. Obvious defects must be reported without undue delay immediately, at the latest, however, within one (1) week after receipt of the goods. Hidden defects must be reported immediately without undue delay after discovery.
(2) We accept no liability for public statements made by third parties (e.g. advertising statements).
(3) The warranty is excluded in the event of unsuitable and improper use, storage or installation, non-observance of the data sheets and the product application information, faulty assembly, programming errors, improper commissioning/maintenance of the delivery item by the Purchaser or third parties, natural wear and tear, excessive stress or use, use of unsuitable operating materials or replacement tools, in the event of force majeure (e.g. lightning strike), special external influences which are not assumed under the contract, or other influences/events that are not attributable to us.
(4) The warranty shall also not apply if and to the extent that the Purchaser modifies the product after delivery or has it modified by third parties and this makes it impossible or unreasonably difficult to remedy the defect. In any case, however, the Purchaser shall bear the additional costs of remedying the defect arising from the modification.
(5) We do not warrant the design or suitability of the product ordered by the Purchaser for any particular purpose. The design responsibility as well as the risk of use lie solely with the Purchaser. The Purchaser is strongly advised to study the data sheets and product handling information carefully and to contact us in case of any doubt.
(6) We are not obliged to review and check the completeness or correctness of information, data and specifications for the ordered product transmitted by the Purchaser. The same shall apply with regard to the suitability of the materials for his product.
9.3 Industrial property rights
(1) Unless otherwise agreed, we are obliged to provide the goods free of third party rights, in particular intellectual property rights such as copyrights, patent rights, utility model rights or design rights as well as other industrial property rights (hereinafter referred to as "IPR"), only in the country of the place of delivery. If a third party asserts justified claims against the Customer due to the infringement of property rights by deliveries made by us and used in accordance with the contract, we shall be liable to the Customer as follows:
(a) We shall, at our discretion and at our expense, either obtain a right of use for the products concerned, modify them in such a way that the property right is not infringed, or replace them. If this is not possible for us under reasonable conditions, the Customer shall be entitled to the statutory rights of withdrawal from the contract or reduction of the purchase price.
(b) Our obligation to pay damages is governed by clause 9.4.
(c) Our aforementioned obligations shall only exist insofar as the Customer notifies us without undue delay in writing of the claims asserted by the third party, does not acknowledge an infringement and all defensive measures and settlement negotiations remain reserved for us. If the Customer ceases to use the supplies in order to mitigate damages or for other good cause, it shall be obliged to point out to the third party that such cessation of use does not constitute an acknowledgement of any infringement of the IPR.
(2) Claims of the Customer are excluded insofar as it is responsible for the infringement of property rights.
(3) Claims of the Customer are also excluded insofar as the infringement of property rights is caused by specifications of the Customer, by an application not foreseeable by us or insofar as the delivery is modified by the Customer or used together with products not supplied by us.
(1) We shall be liable in all cases of contractual and non-contractual liability in the event of intent and gross negligence for damages or reimbursement of wasted expenditure in accordance with the statutory provisions.
(2) In other cases, we shall only be liable – subject to clause 9.4 (3) – in the event of a breach of a material contractual obligation (so-called cardinal obligation). A contractual obligation is material if its fulfilment makes the proper performance of the contract possible in the first place and the Purchaser may regularly rely and has relied on its observance. In this case, however, our liability is limited to compensation for the damage typical for the contract and foreseeable at the time of conclusion of the contract.
(3) The above limitations of liability shall not apply in the event of injury to life, limb and health, for a defect following the assumption of a guarantee for the quality of the item and in the event of fraudulently concealed defects. Liability under the Product Liability Act shall also remain unaffected.
(4) Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, representatives and vicarious agents.
9.5 Limitation period
(1) The general limitation period for claims arising from material defects and defects of title is one (1) year from the statutory commencement of the limitation period. This does not affect section 445b BGB (German Civil Code).
(2) The limitation period shall also apply to contractual and non-contractual claims for damages of the Purchaser based on a defect of the goods.
(3) The limitation period for other claims for damages shall be one (1) year from the end of the year in which the claim arose and the Purchaser became aware of the circumstances giving rise to the claim and the person of the debtor or should have become aware without gross negligence. This limitation does not apply in the cases of clause 9.4 (1) and (3); in these cases, legal provisions shall apply.
10. Claims by third parties due to infringement of property rights, indemnification
Should third parties assert claims against us for the infringement of property rights due to the use of the product by the Purchaser, which are not attributable to us, the Purchaser is obliged to indemnify us against all claims resulting from this, claims for damages as well as other costs and expenses and to support us in the best possible way in the defence against such claims. This shall not apply insofar as the Purchaser is not responsible for the infringement of property rights.
Our business or technical information originating from us shall be kept secret from third parties as long as and to the extent that it is not demonstrably public knowledge or has not been designated by us for resale by the Customer and may only be made available in the Customer's own business to those persons who must necessarily be consulted for its use and who are also obliged to maintain secrecy. The information remains our exclusive property.
12. Reservation of performance
The performance of the contract is subject to the proviso that there are no obstacles due to German, US-American or other applicable national, EU or international regulations of foreign trade law as well as no embargos or other sanctions. The Customer is obliged to provide all information and documents required for the export, transfer or import.
13. Data protection
We collect, process and store personal data of the Customer for the purpose of initiating, concluding and/or executing a contract in accordance with the applicable data protection provisions, in particular the German Federal Data Protection Act (BDSG) and the General Data Protection Regulation (GDPR). Details on the type, scope and purpose of the collection, processing and use of personal data can be found in our privacy statement, which can be accessed at https://www.murdotec.de/datenschutz.html.
14. Final provisions
(1) Amendments to these GTC must be made in writing to be effective. This also applies to the waiver of this written form requirement.
(2) Unless otherwise agreed, the place of performance shall be Dortmund.
(3) The law of the Federal Republic of Germany shall apply to all legal relationships with the Customer to the exclusion of international unified law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).
(4) The exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Dortmund. However, we are entitled to bring an action at the general place of jurisdiction of the Customer.
(5) These GTC shall remain effective in the remaining parts even if individual points are legally ineffective. In place of the invalid provision, the parties shall immediately agree on a provision that comes as close as possible to the invalid provision in economic terms. The same shall apply in the event of a loophole.
Stand: 25th March 2021