General Terms Delivery and Payment for MAGRO Verbindungselemente GmbH
1. I. Definition, applicability
1. The following terms and conditions are only valid for companies as defined by Art. 310 Paragraph. 1 BGB.
2. The following terms and conditions are solely applicable. MAGRO Verbindungselemente GmbH (henceforth MAGRO) does not recognize conflicting or purchaser conditions that deviate from these conditions unless MAGRO has expressly given its written approval as to their validity. The following conditions are also valid even if MAGRO is informed of conditions contradicting or purchaser conditions deviating from these, and still executes the order for the purchaser.
3. Agreements deviating from these conditions or supplementary agreements are only valid if MAGRO has given written confirmation.
II. Offers, order confirmation
1. MAGRO has four weeks to accept orders that qualify as offers in accordance with Art. 145 BGB.
2. A delivery contract does not exist until a written order confirmation is made; the confirmation is generated no later than the time the goods are dispatched. Electronic transmission of the confirmation fulfills the requirement for the written form. If MAGRO can present a transmission report proving that MAGRO sent a declaration by fax or electronic transmission, it will be assumed that the purchaser has
received said declaration.
3.Insofar as MAGRO uses a tele service or media service to conclude a contract, the purchaser waives his right to written notification containing certain information pursuant to the ordinances in Art. 241 EGBGB (Introductory Act of the German Civil Code), as well as confirmation that the order has been submitted. Orders sent via electronic communications are considered submitted once they are
accessed and opened by MAGRO. MAGRO reserves the right to delete orders without opening them.
III. Prices and payment conditions
1. All of the prices listed by MAGRO are ex stock including value added tax applicable at the time of invoice.
2. Price changes are permitted if more than six weeks elapse between conclusion of the contract and the negotiated date of delivery. If wages, materials costs, or the market acquisition price should increase after the delivery has been completed, MAGRO reserves the right to raise prices corresponding to the rise in costs.
3. If MAGRO accepts returned goods – except in cases in which the purchaser has a legal right to return the goods – MAGRO shall charge a restocking fee of 20% of the value of the returned goods; the minimum restocking fee is 15 euros.
4. A minimum quantity surcharge is assessed for small orders under a net merchandise value of €150.00.
5. If nothing else has been agreed, payment is due upon delivery; no later than upon receipt of the invoice. For payment within 14 days of the invoice date, MAGRO will grant a 2% cash discount; otherwise invoices shall be paid in full. Regardless of the above stipulation, MAGRO reserves the right to demand payment upon delivery without giving any justification.
6. The day of payment for all forms of payment shall be defined as the day on which MAGRO or thirdparties with claims on MAGRO have access to the payment amount.
IV. Default
1. In addition to the statutory guidelines, once the payment due date elapses, the purchaser can be in default through issuance of a payment reminder. If the payment date is a specific calendar date, the purchaser will be in default without issuance of a warning. Should the purchaser default MAGRO reserves the right to suspend all deliveries and services.
2. In cases of payment default and exceeded credit limits, MAGRO reserves the right to suspend deliveries until the entire amount is paid in full or the value of the ordered goods is once again within his assigned credit limit.
3. Should the purchaser not fulfil his payment obligations within the set period, despite warnings and deadlines, or should he and his assets or those of his legal representative file for bankruptcy proceedings, the total remaining debt is due immediately including all supplementary costs. In such cases, MAGRO reserves the right to nullify all unfulfilled contracts and demand return of all unpaid goods to which it still retains title, as well as reimbursement for all costs associated with the recission. The obligation for cost reimbursements does not apply, if the purchaser is not himself responsible for the default in payments.
V. Retention of property
1. MAGRO retains the property title to all delivered items until receipt of payment for business associations with the purchaser.
2. .The excercise of retention of property as well as the garnishment of sale articles by MAGRO is not considered recission of contract, insofar as the statutes of the German Consumer Credit Act cannot be asserted or MAGRO does not expressly declare so in writing.
3. The purchaser reserves the right to further sell the sales articles as part of normal business activity, he does, however, relinquish the total amount of the purchase price negotiated between MAGRO and the purchaser (including value added tax), which the purchaser has gained from the further sale and irregardless of whether the sales articles have been further processed. The purchaser is entitled to
collect this claim even after its conveyance. The authorization from MAGRO to execute the claim itself remains unaffected; however, MAGRO is obligated not to execute the claim as long the purchaser regularly meets his payment obligations and is not in default. Should this be the case, however, MAGRO can demand that the purchaser inform it of the claim and the claimant, as well as provide any other information necessary for execution of said claim as well as hand over the necessary documents, and inform the claimant (third party) of the transfer.
4. The processing or the alteration of the goods by the purchase were carried out for MAGRO. Should the delivered articles be processed with other articles that do not belong to MAGRO, then MAGRO has also acquired partial ownership of the new article in relation to the value of the sales articles to the other articles processed in the the object at the time of processing.
5. Should the delivered articles be intrinsically mixed with other articles that do not belong to MAGRO, then MAGRO thus acquires partial ownership of the new article in relation to the value of said sales articles to the other intrinsically mixed articles. The purchaser reserves partial ownership for MAGRO.
6. The purchase is neither allowed to pledge nor to use sale articles as collateral. Should the articles be pledged or repossessed, or in any other manner come under the power of a third party, the purchaser shall inform MAGRO immediately and provide all necessary information and documentation required by MAGRO to guarantee its rights. MAGRO’s ownership shall be indicated to executory officers and third parties.
7. MAGRO is obligated to make the collateral owed to it available to the purchaser upon request when it exceeds the value of the amount owed by more than 20% insofar as this has not yet been reimbursed. The selection of the collateral to be released resides with MAGRO.
VI. Delivery, delivery period
1.Observance of the negotiated delivery and performance dates is dependent upon all technical issues being settled and payments or other liabilities affecting the purchaser being presented in a timely manner or being fulfilled. If this does not happen, the period will be extended correspondingly.
2. MAGRO reserves the right to deliver the contractual goods to the purchaser provided the proper supplies and raw materials are received in time.
3. Partial deliveries are allowed in as much as they present no disadvantage with respect to use. 4. MAGRO reserves the right to deliver 10% more or less of expendible goods.
5. Should delivery be delayed at the purchaser’s request, the goods will be stored on MAGRO’s premises at the risk and cost of the purchaser.
6.MAGRO reserves the right to the customary deviations regarding the volumes of the sale articles unless the strict adherence to the volumes has been explicitly assured.
7. The delivery deadline shall be extended in cases of force majeure, strikes,or other occasions beyond MAGRO’s control, including storms, for the duration of the hindrance.
8. Should the purchaser delay acceptance or should he violate some other obligation to cooperate, MAGRO reserves the right to fulfil orders to third parties and extend the delivery period appropriately.
MAGRO reserves the right – regardless of further claims – to compensation for damages incurred, including reimbursement for any additional costs.
VII. Delivery – transfer of risk
1. Insofar as the order confirmation does not state otherwise, delivery will be at MAGRO’s cost. Shipping is at the risk and cost of the purchaser. This also applies to returned goods.
2. Neither shipping packaging, nor any other packaging materials will be taken back. VIII. Intellectual Property Rights
1. The purchaser is obligated to immediately inform MAGRO of any third party intellectual property claims regarding products delivered and to allow MAGRO to provide for legal defense at MAGRO’s own costs. MAGRO reserves the right to carry out necessary changes, resulting from intellectual property claims by third parties, even to goods already delivered and paid for.
2. Should MAGRO be denied the right to manufacture or deliver goods by a third party exercising a claim to rightful intellectual property, MAGRO reserves the right – insofar as MAGRO shall not be heldresponsible for the property rights violation – to cease and desist with work or delivery until the legal status is clarified between the purchaser and the third party. Should the delay created by the above action makes it unreasonable to continue with the order, MAGRO reserves the right to withdraw from its obligation.
3. The purchaser bears the responsibility of assuring MAGRO that the services to be provided are free from third party intellectual property claims and thus freeing MAGRO from all resulting third party claims.
IX. Liability for default
1. MAGRO is liable according to legal provisions insofar as the basic purchase contract is a fixed transaction in the sense of Art. 286, paragraph 2, No. 4 BGB (German Civil Code) or Art 376 HGB (German Commercial Code). According to statutory provisions, MAGRO is also liable, insofar as MAGRO is at fault for the consequences of a delivery default and the purchaser is justified in exercising his claim that his interest in the further fulfillment of the contract has elapsed.
2. According to legal provisions MAGRO is liable for defaults, insofar as the purchaser exercises his claims to damages resulting from gross negligence on the part of a MAGRO representative or a vicarious agent for MAGRO. Insofar as no intentional breach of contract can be claimed against MAGRO for default liability, damage liability is limited to foreseeable, typically arising damages
3. According to statutory provisions, MAGRO is liable for default insofar as MAGRO has culpably violated an essential contractual obligation. Insofar as MAGRO in this case cannot be proven to have intentionally violated the contract, liability for damages covers foreseeable typical damages only.
4. Default liability due to culpable harm to life, body or health remains unaffected.
5. To the extent that no additions to the above stipulations are agreed, default liability is excluded.
X. Liability for defects
1. Insofar as a product is specified, it is considered free of material defects as long as recognized production tolerances are adhered to. The purchaser may only cite an intended application if the application has been expressly agreed upon in writing.
2. Obvious faults must be reported to MAGRO immediately and indicated as defects. As soon as MAGRO has been presented with the fault, the fault shall either be rectified or a replacement will be dispatched. In the case of rectification, MAGRO is obligated to assume all costs associated with the remedying the fault, especially transport, travel, labor and material costs, insofar as such costs are not further increased by the transport of the sale article to another location other than the place ofperformance.
3. Should rectification fail, the purchaser reserves the right to choose either to withdrawal or reduce the order.
4. MAGRO is liable for faults in accordance with statutory provisions insofar as MAGRO has deceptively and maliciously concealed the fault or has assumed a guarantee for the quality of the article.
5. According to statutory provisions, MAGRO is liable for faulty products, insofar as the purchaser exercises damage claims due to intent or gross negligence on the part of a MAGRO representative or vicarious agent. To the extent that MAGRO is not responsible for intentional breach of contract in terms of liability for faulty products, liability for damages is limited to foreseeable, typically damages.
6. According to statutory provisions MAGRO is liable for faulty products insofar as MAGRO culpably violates an essential contractual obligation. If MAGRO cannot be shown to have intentionally violated the contract, liability for damages covers foreseeable typical damages only.
7. The liability for faulty products arising from culpable harm to life, body or health remains unaffected along with liability pursuant to the German Product Liability Act.
8. For cases not covered by the above, liability for faulty products is excluded.
9. According to Art. 437 BGB (German Civil Code) claims expire twelve months after risk transfer unless the articles in question are normally intended for use in construction and they have caused faults in the constructed object.
10. According to Articles 478, 479 BGB (German Civil Code) the statute of limitations remains unaffected, it totals two years calculated from the delivery of the faulty products.
XI. Hydrogen embrittlement
1. The contractual partners have been clearly informed of the many various issues and problems associated with a hydrogen-induced brittle fracture, especially in galvanized coatings, high tensile and case hardened articles with a tensile strength greater than 1000 N/mm² and core or surface hardness greater than 320 HV, such as those described in DIN EN ISO 4042. Thus, the contractual partners are aware that the possibility of a hydrogen-induced brittle fracture cannot be precluded for these products.
2. If the delivered products require a reduction in the threat of hydrogen embrittlement due to their intended application (e.g. in construction as a safety part), then the purchaser, the process execution, and procurement personnel are obliged to discuss the materials in detail with MAGRO.
3. DIN EN ISO 4042 is an integral part of the contract. Should the procedure be adhered to, liability for the consequences of hydrogen embrittlement induced faults shall be excluded unless MAGRO caused this fault intentionally or from gross negligence or the purchaser is exercising damage claims resulting from injury to life, body or health. Liability according to from German Product Liability Act remains
unaffected.
XII. Total Liability
1. MAGRO is liable for further damage claims regardless of the legal nature of the claim exercised, especially those arising from encumbrances at the signing of the contract, other contractual violations or due to the misdemeanour claims arising from physical damages adherent to Art. 823 BGB (German Civil Code) – correspondingly cipher IX paragraphs 5, 6 and 7. Otherwise additional liability is excluded.
2. Insofar as MAGRO is excluded from or limited in its indemnity due to this article, this exclusion or limitation imitation of indemnity shall also apply to the personal indemnity of MAGRO’s staff, employees, representatives, and vicarious agents.
3. The statute of limitation for all claims not subject to the statute of limitations for faulty articles, has an expiration period of 18 months. It begins from the moment the fault is noticed or from the point in time that the purchaser should have noticed the faults and the person responsible for the faults barring gross negligence.
XIII. Counter claims, transferability
1. The rights of set off are only available to the purchaser, if his counter claim is determined to be legally valid, uncontested or recognized by MAGRO. In addition, the purchaser is only allowed to exercise a right of retention insofar as his counter claim is based on the same contractual relationship.
2. The purchaser can only relinquish rights to contracts concluded with MAGRO with the approval of MAGRO.
XIV. MAGRO’s right to recission
1. Should an unforeseen event not caused by MAGRO significantly alter the economic significance of the content of the provided service or significantly affect MAGRO’s operations, and in the event that fulfillment of the service subsequently becomes impossible for MAGRO, MAGRO reserves the right to recission or partial recission from the contract unless the purchaser cannot be expected to bear a partial recission. Further legal rights of recission are not in any way affected by this clause.
2. The purchaser has no right to claim damages arising from such a recission. Should MAGRO wish to exercise its right of recission, MAGRO shall inform the purchaser, even in the event that an extension of the delivery period has been negotiated with the purchaser.
XV. Place of performance, place of jurisdiction, applicable law, other
1. Insofar as nothing else has been agreed upon, MAGRO’s headquarters shall be the place of performance.
2. Place of jurisdiction is the court responsible for the MAGRO headquarters. However, MAGRO reserves the right to institute proceedings against the purchaser at any authorized place of jurisdiction. The same applies even if the purchaser does not have a general domestic jurisdiction, if after signing the contract he has moved his residence or normal abode or should his residency or normal residency
at the time of the proceedings be unknown.
3. Should a clause in these conditions or a portion of a clause be invalidated, the remaining clauses or the remaining portion of said clause remains in effect.
XVI. Foreign contractual partners
Insofar as the contractual partner has his offices outside the Federal Republic of Germany, the above clauses are valid for the exclusive application of German law unless a subsequent agreement is reached indicating otherwise.
1. Warranty / damages/ liability
1.1. Obvious faults must be reported to MAGRO immediately and indicated as defects. As soon as MAGRO has been presented with the fault, the fault shall either be rectified or a replacement will be dispatched. In the case of rectification MAGRO is obligated to assume all labor and material costs associated with the removal of the fault , insofar as said costs are not further increased by the transport of the sale article to another location other than the place of performance. The level of said compensation for expenses is limited to triple the value of the faulty article.
1.2. Should the rectification or the delivery replacement fail, the purchaser reserves the right to reduce the corresponding remuneration for the order in question or, if this constitutes an essential violation of contract, demand recission of the contract.
1.3. If MAGRO is not responsible for the fault, warranty rights cannot be exercised.
1.4. If MAGRO owes a determinate obligation, replacement of faulty items is excluded.
1.5. MAGRO is liable under statutory provisions, if the purchaser’s damage claim is due to intent.
1.6. MAGRO is also liable in accordance with the provisions in the German Product Liability Act (Produkthaftungsgesetz).
1.7. In all other cases MAGRO is not liable for damages. Thus MAGRO is specifically not liable for damages not present on the delivered articles.
1.8. The warranty period is six months calculated as of the date of risk transfer. The period is subject to a statute of limitation and is valid for indemnity claims resulting from faulty material, insofar as no claims of wrongdoing can be exercised; such claims are subject to the legal statute of limitations for compensation for consequential damage caused by a defect, insofar as no claims in tort are asserted; for these claims the the statutory limitation period shall apply to these claims.
2. Time limits for filing a complaint, exceeding the warranty period
2.1. Claims relating to hidden faults must be filed within 10 working days of their discovery.
2.2. No warranty claims can be made for faults discovered after the warranty period has expired.
Valid as of 06/2009
