General Terms and Conditions

General Terms and Conditions of Madison GmbH, Lindenstr. 14, D – 50674 Köln

1. Scope of Application

1.1 These General Terms and Conditions apply exclusively to contracts between Madison GmbH and companies within the meaning of § 14 BGB (German Civil Code), legal entities under public law, and special funds under public law (“Customer”).
1.2 The contractual relationship between Madison and the Customer is based solely on these Terms and Conditions. We expressly do not accept any terms or conditions of the Customer that are contrary or different to our Terms and Conditions. The General Terms and Conditions of Madison also apply if services are rendered without reservation in the knowledge of the Customer’s conditions that are contrary or different to these Terms and Conditions
1.3 Subject to the renewed inclusion of the changed contractual conditions, these General Terms and Conditions of Sale and Delivery apply to all present and future contracts between Madison and the Customer for the sale of goods without having to be expressly included again.

2. Contracts

2.1 Offers by Madison are without commitment and not binding.
2.2 All agreements made between Madison and the Customer have to be documented in writing and have to be passed on to both contracting parties.

3. Prices

3.1 Unless otherwise provided in the offer by Madison, prices are quoted net (excluding Value Added Tax) and “ex works”.
3.2 Madison is entitled to pass on to the Customer all increases in freight charges, shipping expenses, insurance premiums, etc. occurring after the conclusion of contract if the delivery is to be effected later than 8 weeks after conclusion of contract. The same applies to customs duties and other charges or taxes that directly or indirectly increase the price.
3.3 All taxes and other levies incurred for deliveries and performance in the country of receipt shall be borne by the Customer.

4. Payment Terms

4.1 The Customer has to meet Madison’s claim for payment immediately and without any deduction.
4.2 Set-off rights can only be granted to the Customer if his counterclaims have been declared final and absolute, are undisputed or recognized by Madison. The Customer has no right of retention on account of disputed and not legally determined counterclaims
4.3 Bills of exchange and checks will only be accepted by Madison upon special agreement and on account of performance.

5. Delay of Payment

5.1 The Customer is in arrears at the latest 14 days after the due date and receipt of a bill – subject to an earlier reminder – or a similar payment demand
5.2 In the event of late payment Madison is entitled to demand past-due interest at a rate of 8% over the base rate per annum.
5.3 If any higher damage arises from the Customer’s failure to pay, Madison shall be entitled to claim reimbursement upon proof.

6. Services

6.1 In the absence of agreements to the contrary, Madison shall be entitled to make partial deliveries.
6.2 In case of contracts the execution of which extends over a long period of time each delivery shall be deemed a concluded transaction. A faulty or untimely partial delivery has no influence on the rest of the contract.

7. Terms of Delivery

7.1 The commencement of the delivery period as provided by Madison requires the Customer has fulfilled all his obligations to cooperate
7.2 The delivery deadline is complied with if by the expiry of the deadline the delivery item has left the works, or if readiness for dispatch has been notified.
7.3 Should an unforeseen and temporary service hindrance occur, which is not Madison’s responsibility, the delivery period shall be extended for the period in which this service hindrance occurs, particularly in the event of a labour dispute.
7.4 If dispatch is delayed at the Customer’s request, he shall be charged the costs incurred by storage, starting one month after the notice of readiness for dispatch, in case of storage at the works of Madison, however, at a rate of at least 1 % of the invoice amount for each month.

8. Transfer of Risk for Goods Provided

Madison does not bear the risk of accidental loss of goods or the accidental loss of other objects that the Customer has put at Madison’s disposal for processing or packing. Madison shall take out insurance to cover such risks only at the Customer’s request and expense.

9. Transfer of Risk

9.1 Unless otherwise agreed, the dispatch of the goods is carried out at the expense and risk of the Customer, even in case of partial deliveries. If Madison complies with shipping instructions given by the Customer, Madison follows these instructions without accepting any liability and at the expense and risk of the Customer
9.2 At the Customer’s request and expense the shipment shall be insured by Madison against theft, breakage, transport, fire and water damages as well as other insurable risks.
9.3 If dispatch is delayed due to circumstances that the Customer is responsible for, the risk passes over to the Customer as of the date of the readiness for dispatch; Madison, however, is obliged to effect, on request and at the cost of the Customer, those policies of insurance the latter demands

10. Obligation to Notify Defects

10.1 Deliveries shall be examined immediately upon receipt by the Customer or by the consignee designated by the customer. Following unreserved acceptance of the goods by the Customer or a person commissioned by the Customer, any subsequent claim due to external appearance of the delivery is excluded. Notification of detectable defects of the goods may only be made within 3 working days after delivery and other defects only within 3 working days after discovery. Otherwise the goods shall be considered to be accepted with regard to the defect. The same shall be applicable if the Customer does not enable us to undertake a proper examination of the defect without delay after our request.
10.2 Notices of defect must be made in writing.

11. Warranty

11.1 For defects for which notification is promptly made and which more than insignificantly limit the value or usability, Madison initially, according to choice, provides for delivery of replacement goods free of defects or the reduction of the agreed delivery price. In case of a replacement delivery, the Customer is not entitled to withdrawal or a price reduction until after two failures. For the replacement goods, Madison’s provisions are limited to the same scope as in the case of the original delivery. The period of limitation for all warranty claims is 12 months.
11.2 Above paragraph does not limit the Customer’s claims in case of intent and claims for damages in accordance with no. 12.

12. Liability

12.1 Madison’s liability shall in principle be limited to damage caused by intent or gross negligence by Madison or its agents. In case of minor negligence, Madison’s liability is limited to injuries of life, body or health as well as the breach of obligations required for the fulfilment of the contractual purpose.
12.2 In case of breaches of obligations due to minor negligence, Madison’s liability is limited to the amount of damages typical for the kind of agreement in question, which were foreseeable when the contract was concluded or, at the latest, when the breach of duty was committed. This shall not apply in the case of injury to life, limb or health.
12.3 Compensation claims, which require no fault by law, remain unaffected by the regulations in paragraph (1) and (2).

13. Retention of Title

13.1 All deliveries shall be effected under reservation of ownership. The delivered goods shall remain property of Madison until all present and future claims resulting from the legal relationship between Madison and the Customer have been settled in full. The Customer is granted the revocable authorisation to resell the goods supplied by Madison in the normal and proper course of his business.
13.2 In the event of resale of the goods subject to retention of title, the Customer shall assign to Madison his future claim against his buyers or third parties in the amount of the value of the goods subject to retention of title; Madison shall accept the assignment. The value of the goods in which title is retained shall be the amount invoiced to the Customer (including Value Added Tax) plus a security premium of 10%, which however shall not be applied to the extent that the rights of third parties are enforceable against it.
If Madison is the co-owner of the sold goods under reservation, the assignment of the claim also covers the amount which corresponds with our pro rata value in the co-ownership. If the Customer is unable to assign his claims in accordance to aforementioned regulations, and in particular due to priority assignments to third parties, the resale will not take place within the normal and proper course of business within the meaning of that provision.
The Customer shall be entitled to collect the claims assigned to us until we revoke that permission. Our authority to collect the receivables ourselves remains unaffected thereof; however, we are obliged to refrain from doing this provided that the customer complies with his payment obligations arising out of the proceeds collected, and particularly when no application for the opening of insolvency proceedings has been made or payments have ceased. If, however, such is the case we may demand that the Customer notifies us of the assigned claims and the respective debtors, gives all information necessary for the collection, provides the documentation thereto and notifies the debtor (third parties) of the assignment. We are authorised also to notify the assignment to the debtors ourselves.
13.3 The Customer shall immediately inform us about any and all judicial execution measures or other interferences by third parties in the retention goods or the assigned claims, and shall provide us with the documents required for judicial proceedings. To the extent to which the third party shall not be able to reimburse judicial and extra-judicial costs, the Customer shall be liable for our loss.
13.4 If payments are suspended, an application is filed for insolvency proceedings or insolvency proceedings are opened, and in case of extrajudicial composition proceedings, the right to resell the goods subject to retention and the authorization to claim assigned accounts receivable shall be forfeited.
13.5 Madison is obligated to release the securities that it is entitled to at its own discretion, as far as their estimated value exceeds 150 % of the sum of the outstanding claims.

14. Place of Fulfilment

Place of fulfilment for all mutual obligations shall be Cologne (Köln).

15. Applicable Law

For any legal relationship between Madison and the Customer resulting from or in connection with this contract the laws of the Federal Republic of Germany are binding. The applicability of the UN-purchase law is excluded

16. Place of Jurisdiction

The place of jurisdiction for all disputes between Madison and the Customer arising out of or in relation to this contract is Cologne (Köln) or – if proceedings are initiated by Madison and insofar as the Customer is a merchant, a legal entity under public law or a special fund under public law – Madison shall be entitled to sue the Customer at his place of business.

status: October 2013