General Terms and Conditions of Purchase of MAGRO Verbindungselemente GmbH
1. Conclusion of contract
• 1.1 MAGRO Verbindungselemente GmbH (hereinafter referred to as MAGRO) orders exclusively on the basis of its General Terms and Conditions of Purchase. Other conditions will not become part of the contract, even if MAGRO does not expressly object to them. If MAGRO accepts the delivery/service without expressed objection, it can under no circumstances be inferred from this that MAGRO has accepted the supplier’s terms of delivery. When submitting offers, the supplier must agree to MAGRO’s general terms and conditions of purchase. If such an express declaration is not made, the execution of the order shall in any case be deemed to be acceptance of MAGRO’s General Terms and Conditions of Purchase. These General Terms and Conditions of Purchase also apply to all future contractual relationships with the supplier.
• 1.2 If the supplier creates an offer based on an inquiry from MAGRO, he must strictly adhere to MAGRO’s inquiry and expressly point out any deviations.
• 1.3 If the supplier does not accept the order in writing within 10 working days after receipt, MAGRO is entitled to cancel it.
• 1.4 Only orders placed in writing are legally binding. Orders placed verbally or by telephone require subsequent written confirmation to be legally valid. The same applies to verbal side agreements and changes to the contract.
Services or deliveries performed without a written order will not be recognised. Orders, delivery call-offs and changes and additions to them can – subject to prior written agreement – also be made by remote data transmission or by machine-readable data carriers. In the case of an informal business transaction, the order is considered a commercial confirmation letter.
• 1.5 Remuneration for visits or the preparation of offers, projects, etc. will not be granted unless remuneration has been expressly agreed or there is a legal entitlement to it.
• 1.6 If MAGRO can prove by submitting a transmission report that MAGRO has sent a declaration by fax or remote data transmission, it will be assumed that the supplier has received this declaration.
• 1.7 The supplier must treat the conclusion of the contract confidentially and may only refer to business connections with MAGRO in advertising material after MAGRO has given its written consent.
• 1.8 The contracting parties undertake to treat as business secrets all non-obvious commercial or technical details that become known to them through the business relationship. Sub-suppliers are to be obligated accordingly. • 1.9 MAGRO can request changes to the delivery item even after the conclusion of the contract, insofar as this is reasonable for the supplier. In the case of this contract change, the effects on both sides, in particular with regard to the additional or reduced costs and the delivery dates, must be appropriately taken into account.
2. Prices, shipping, packaging
• 2.1 The agreed prices are fixed prices and exclude additional claims of any kind. The costs for packaging and transport to the shipping address or point of use specified by MAGRO as well as for customs formalities and customs are included in these prices. If a price “ex works”, “ex warehouse” or something similar has been agreed, the in-house forwarder prescribed by MAGRO must be commissioned. The supplier bears all costs incurred up to the handover to the carrier, including loading and cartage. If no prices are specified in the order, the supplier’s current list prices apply with the customary deductions. Due to the type of pricing
Agreement on the place of performance is not affected.
• 2.2 Delivery notes, bills of lading, invoices and all correspondence have the order no. to be included by MAGRO. Offers are with the inquiry no. to provide. • 2.3 MAGRO only accepts the ordered quantities or quantities. 10% over or under deliveries are permitted. Anything beyond that is only permitted after prior agreement with MAGRO.
• 2.4 Shipping is at the risk of the supplier. The risk of any deterioration, including accidental loss, thus remains with the supplier until delivery to the shipping address or point of use desired by MAGRO.
• 2.5 The supplier’s obligation to take back the packaging is based on the statutory provisions. The goods are to be packaged in such a way that damage in transit is avoided. Packaging materials are only to be used to the extent necessary to achieve this purpose. Only environmentally friendly packaging materials may be used. If exceptionally MAGRO is invoiced packaging separately, MAGRO shall be entitled to return packaging that is in good condition to the supplier carriage, against payment of 2/3 of the value resulting from the invoice, carriage paid, to the supplier.
• 2.6 In addition to this, the transport and packaging regulations of MAGRO Verbindungselemente GmbH apply as amended.
3. Billing and Payment
• 3.1 Invoices are to be submitted separately in the proper form after delivery, if necessary for understanding, with all associated documents and data. MAGRO has the right to refuse performance until a proper invoice has been submitted. The actual quantities, weights or other units on which the delivery is based as well as the
agreed prices.
• 3.2 Payment is made in the customary manner. Payment is made within 14 days with • 3% discount, 30 days 2% discount or after 90 days net.
• 3.3 If certificates of material tests have been agreed, they form an essential part of the delivery and must be sent to MAGRO together with the delivery. However, they must be available to MAGRO no later than 5 days after receipt of the invoice. The payment period does not begin before receipt of the agreed certificate.
• 3.4 The settlement of an invoice does not constitute a waiver of a notice of defects regarding the invoiced goods. In the event of defective delivery, MAGRO is entitled to withhold payment proportionally until proper performance.
• 3.5 In the case of advance payments, the supplier must provide appropriate security in the form of a bank guarantee from a recognized major German bank.
4. Delivery Dates, Delay in Delivery, Force Majeure
• 4.1 The agreed delivery dates are binding; If a fixed delivery date elapses, the supplier is in default with the delivery without the need for a reminder. The receipt of the goods at the point of receipt or use specified by MAGRO is decisive for compliance with the delivery date or the delivery period. If acceptance is required, the supplier is in default without a reminder if he has not provided the service by the agreed date or only in such a way that acceptance can be refused (§ 640 Para. 1 Clause 2 BGB).
• 4.2 If the supplier realizes that an agreed deadline cannot be met for any reason, he must inform MAGRO of this immediately in writing, stating the reasons and the expected duration of the delay.
• 4.3 If the supplier is in default by exceeding the delivery date, MAGRO is entitled to demand a contractual penalty of 0.1% of the order amount per working day, but no more than 10% of the order amount. The reservation of the assertion of
Contractual penalty can still be asserted until payment of the invoice. The contractual penalty is to be offset against a claim for damages for delay.
• 4.4 The supplier can only refer to the absence of necessary documents to be supplied by MAGRO if he has requested the documents in writing and has not received them within a reasonable period of time.
• 4.5 Force majeure releases the contractual partners from their performance obligations for the duration of the disruption and to the extent of its effect. The contractual partners are obliged to provide the necessary information immediately within the scope of what is reasonable and to adjust their obligations to the changed circumstances in good faith. MAGRO is released from the obligation to accept the ordered delivery/service in whole or in part and is entitled to withdraw from the contract if the delivery/service is no longer usable due to the delay caused by force majeure at MAGRO – taking into account economic aspects.
• 4.6 If the delivery is earlier than agreed, MAGRO reserves the right to return the goods at the supplier’s expense. If the goods are not returned in the event of early delivery, the goods will be stored at MAGRO at the supplier’s expense and risk until the agreed delivery date. In the event of early delivery, MAGRO reserves the right to make payment on the agreed due date.
• 4.7 MAGRO only accepts partial deliveries after express agreement. In the case of agreed partial deliveries, the remaining quantity must be listed.
5. Liability
• The supplier is liable for any form of breach of contract in accordance with the statutory provisions, unless otherwise stipulated in these terms and conditions.
6. Warranty
• 6.1 The agreed specification is part of the order and can only be changed with mutual consent. Any description of the scope of delivery that is to be regarded as binding or a drawing shall also be deemed to be a specification.
• 6.2 The supplier undertakes, in the case of its deliveries/services and also in the case of sub-deliveries or ancillary services of third parties within the framework of the economic physical and technical possibilities to use environmentally friendly products and processes. The supplier is liable for the environmental compatibility of the delivered products and packaging materials as well as for all consequential damage caused by the violation of his
legal disposal obligations arise. At the request of MAGRO, the supplier will issue a quality certificate for the delivered goods.
• 6.3 MAGRO will immediately notify the supplier in writing of obvious defects in the delivery/service as well as transport damage as soon as they are determined in the normal course of business, but no later than within
10 working days after receipt of the delivery by MAGRO. In this respect, the supplier waives the objection of delayed notification of defects.
• 6.4 The agreed quality of an item or a work also includes properties that MAGRO has identified on the basis of public statements by the seller, the entrepreneur, the manufacturer (Section 4 (1) and (2) of the Product Liability Act) or his assistants, particularly in advertising or labeling Properties may expect, unless these are in conflict with what has been agreed
Characteristics. This does not apply if the contractual partner did not know the statement and did not need to know that it was corrected in an equivalent manner at the time the contract was concluded or that it could not influence the purchase decision.
• 6.5 The right to choose the type of supplementary performance also applies to MAGRO in the case of a contract for work, unless the contractual partner has a right to refuse supplementary performance or MAGRO chooses an unreasonable right of supplementary performance vis-à-vis the entrepreneur.
• 6.6 Due to a defect in the delivered product or the work created, MAGRO can remedy the defect itself and demand reimbursement of the necessary expenses after the unsuccessful expiry of a reasonable period set for supplementary performance, unless the supplier justifiably refuses supplementary performance. In this regard, the statutory regulation on self-performance in the case of a contract for work (§ 637 BGB) applies accordingly to the purchase contract. Notwithstanding the statutory provisions, in urgent cases, in particular to avert an acute risk of significant damage, MAGRO can remedy the defect itself at the expense of the supplier without specifying a deadline for subsequent performance
remove.
• 6.7 The warranty period is 24 (in words: twenty-four) months, unless expressly agreed otherwise. It begins with the handover of the delivery item to MAGRO or the third party named by MAGRO at the point of receipt or use specified by MAGRO. If acceptance dates have been agreed, the guarantee and warranty period begins with successful acceptance. If acceptance is delayed through no fault of the supplier, the warranty period begins no later than 12 (in words: twelve) months after the delivery item has been made available for acceptance.
• 6.8 If a defect occurs in the first 12 months (guarantee period) of the warranty period, it is assumed that this defect already existed at the time of the transfer of risk, unless this assumption is incompatible with the nature of the item or the defect.
• 6.9 For delivery parts that could not remain in operation during the investigation of the defect and/or the elimination of the defect, the current guarantee or warranty is extended. Warranty period around the time of the service interruption.
• 6.10 For repaired or newly delivered parts, the guarantee or warranty period begins anew at this point in time – beyond the statutory suspension.
• 6.11 Claims that already exist at the beginning of the warranty period or that arise during the warranty period expire according to the statutory limitation periods. The statute of limitations begins to run when the claim arises.
• 6.12 In the event of legal defects, the supplier shall indemnify MAGRO against any existing third-party claims. With regard to legal defects, the limitation period is three years. This limitation period begins at the end of the year in which the claim arose and MAGRO became aware of the circumstances giving rise to the claim and the person of the debtor or should have become aware thereof without gross negligence, regardless of the knowledge or grossly negligent ignorance in ten years of their origin.
• 6.13 If MAGRO had to take back the item or work delivered by the contractual partner as a result of defectiveness of the item or work delivered, accept a reduction in purchase price or payment or pay its customer compensation or reimbursement of expenses, the 437 of the German Civil Code (Bürgerliches Gesetzbuch, BGB) due to the lack of an otherwise required deadline asserted by MAGRO’s customer. The above warranty period begins. In these cases, the risk passes to the customer from MAGRO. The statute of limitations for the above-mentioned claims occurs at the earliest two months after MAGRO has fulfilled the claims of its customer. This suspension of expiry ends no later than five years after the point in time at which the contractual partner delivered the item or work to MAGRO.
• 6.14 If a claim is made against MAGRO due to violation of official safety regulations or due to domestic or foreign product liability regulations or laws due to a defectiveness of the product that can be traced back to the supplier’s goods, then MAGRO is entitled to demand compensation for this damage from the supplier, insofar as it is caused by the products delivered by it. This damage also includes the costs of a necessary recall campaign. If an error occurs in a part supplied by the supplier, it is assumed that the error originated exclusively in the supplier’s area of responsibility.
• 6.15 The supplier must carry out quality assurance that is suitable in terms of type and scope and corresponds to the latest state of the art and must provide evidence of this to MAGRO upon request. The supplier will conclude a corresponding quality assurance agreement with MAGRO to the extent that MAGRO deems it necessary.
• 6.16 The supplier will take out insurance against all product liability risks, including the risk of recalls, for a reasonable amount and present the insurance policy to MAGRO for inspection upon request.
7. Guarantee
• 7.1 The supplier guarantees and assures that all deliveries/services correspond to the latest state of the art, the relevant legal provisions and the regulations and guidelines of authorities, professional associations and trade associations. If deviations from these regulations are necessary in individual cases, the supplier must obtain written consent. the
The supplier’s warranty obligation is not limited by this consent. If the supplier has reservations about the type of execution desired by MAGRO, the supplier must notify MAGRO of this in writing without delay.
• 7.2 The supplier guarantees and assures that all deliveries are free of third-party property rights and, in particular, that the delivery and use of the delivery items does not infringe patents, licenses or other property rights of third parties within Germany. If the supplier is aware that its products are also sold by MAGRO in certain countries, the above also applies to these countries.
8. Intellectual Property Rights
• 8.1 The supplier shall indemnify MAGRO and MAGRO’s customers against claims by third parties resulting from any infringements of industrial property rights and shall bear all costs incurred by MAGRO in this connection.
• 8.2 MAGRO is entitled, taking into account the duty of care of a prudent businessman, to obtain approval for the use of the relevant delivery items and services from the entitled party at the supplier’s expense.
9. Foreign Business
• If the supplier has its branch abroad, the following also applies:
• 9.1 German law applies exclusively to the relationship between the supplier and MAGRO, to the exclusion of the laws on the international purchase of movable property (CISG).
• 9.2 Contract language is German. If the contractual partners also use another language, the German wording takes precedence.
10. Final Provisions
• 10.1. Should individual parts of these General Terms and Conditions of Purchase be legally ineffective, the effectiveness of the remaining provisions will not be affected.
• 10.2 The supplier is not entitled to assign its claims against MAGRO without MAGRO’s prior written consent, which may not be unreasonably withheld.
• 10.3 MAGRO will treat the supplier’s personal data in accordance with the Federal Data Protection Act.
• 10.4 Unless expressly agreed otherwise, the place of performance for the delivery obligation is the shipping address or place of use requested by MAGRO; for all other obligations of both parts Bad Mergentheim.
• 10.5 For all disputes arising from the contractual relationship, if the supplier is a merchant, a legal entity under public law or a special fund under public law, legal action must be taken at the court responsible for MAGRO’s headquarters. MAGRO is also entitled to sue the supplier at any other permissible location.
Status June 2009
