General Terms and Conditions of MAGS Vertriebs GmbH
1. SCOPE OF APPLICATION
1.1 All our offers, deliveries, and services are made exclusively on the basis of these delivery and payment conditions. These conditions are an integral part of all contracts we conclude with our contracting partners for our deliveries or services. All previous terms and conditions are hereby invalidated.
1.2 Contradictory or deviating conditions of the client are not recognized unless their validity is expressly agreed upon in writing. This applies in particular if the opposing conditions are merely communicated in standard form.
1.3 The general delivery and payment conditions also apply to all future offers, deliveries, and services to the client, even if they are not separately agreed upon again.
2. OFFERS AND PRICES
2.1 Offers and prices are subject to change in all respects and become binding only upon our written order confirmation. We are entitled to accept the contract offer contained in the order within 2 weeks after it has been received by us. If the client believes that the order confirmation deviates from their order, they must immediately, but no later than one week after the date of our order confirmation, notify us in writing of the alleged deviations. If the client fails to check the order confirmation and to promptly notify any discrepancies, our order confirmation is considered correct and binding on both parties.
2.2 Supplementary agreements made before or upon conclusion of the contract require our written consent to be effective.
2.3 All our information, measurements, weights, illustrations, descriptions in price lists, catalogs, or other printed materials are only approximate but determined to the best of our ability and are not binding on us. They do not constitute warranted characteristics but rather descriptions of our deliveries or services. We reserve the right to make changes to the product range and the visual design.
2.4 Our prices are ex-works in Euros plus the applicable statutory value-added tax at the time of delivery, unless otherwise specified. Packaging, freight, and insurance are not included and will be invoiced separately.
3. PAYMENT TERMS
3.1 The invoice is prepared as of the date of shipment of the goods.
3.2 Our invoices are payable within 14 days from the date of the invoice unless otherwise agreed upon in writing. In the case of unknown clients, delivery is made against immediate cash payment, cash on delivery, or advance payment at our discretion.
3.3 In case of exceeding the agreed payment term, immediate default occurs, and we are entitled to calculate default interest of 8 percentage points above the respective valid base rate of the Deutsche Bundesbank per annum starting from the due date. This does not preclude the assertion of further default damages. Discounts are only granted if all payment obligations from previous deliveries have been fulfilled.
3.4 Payment by bill of exchange requires prior agreement. In any case, bills of exchange or checks are only accepted on a conditional basis and can be returned at any time. Bills and checks are only considered as payment after they have been cashed. When accepting bills of exchange, the customary discount and collection charges of banks will be charged. These are due immediately.
3.5 If there are significant deteriorations in the client's financial circumstances that give rise to doubts about their solvency, we are entitled to withdraw from the contract or retain our deliveries and services and set a reasonable deadline for the client to make advance payments or provide security at our discretion. After this deadline has expired, we are entitled to withdraw from the contract.
3.6 If the client fails to meet their payment obligations, especially if a check or bill of exchange is not honored, or it can be proven that enforcement measures have been unsuccessful, the client has suspended their payments, or insolvency proceedings have been initiated, we are entitled to declare the entire remaining debt from the contract due and payable, even if we have accepted a bill of exchange or check. In this case, we are also entitled to demand advance payments or security deposits for all other contracts.
3.7 The client is only entitled to set-off against any counterclaims if they are undisputed or have been legally established. The assertion of a right of retention by the client is excluded insofar as these claims do not arise from the same contractual relationship.
3.8 Any errors in our invoices must be reported within 8 days of receiving the invoice. The recipient's silence for a longer period is considered tacit acknowledgment of the correctness of the invoice.
4. RETENTION OF TITLE
4.1 All goods delivered by us remain our property until full payment and settlement of all claims arising from the business relationship. Goods subject to retention of title may only be sold in the regular course of business if it is ensured that the claim from the resale is transferred to us and the retention of title is passed on to the customer. If the realizable value of all our collateral exceeds the secured claims by more than 20%, we will release the collateral of our choice upon request of the client. The client hereby assigns to us, as a security, all claims arising from the resale or any other legal basis regarding the reserved goods. The authorization to resell is revocable at any time. The client is obligated to provide us with the name of the buyer of the reserved goods in writing upon request.
4.2 Actual or legal access to the reserved goods, as well as their damage or loss, must be reported to us in writing without delay. In the event of third-party access, the client must bear all costs necessary for the removal of the access, including third-party intervention lawsuits, as well as for the replacement of the goods.
4.3 The claims arising from the resale or other legal grounds regarding the reserved goods are hereby assigned to us in full as collateral. We authorize the client to collect the assigned claims for its own account and in its own name on a revocable basis. This collection authorization can be revoked if and as long as the client is in default with a secured claim, is insolvent, or insolvency proceedings have been applied for against its assets.
4.4 No acquisition of ownership of the reserved goods by the client takes place through processing or transformation. If the delivered goods are combined, processed, or mixed with other objects, this is done on our behalf, without creating obligations for us.
4.5 We establish a lien on all raw materials of any kind handed over by the client for securing all our current and future claims arising from the delivery of goods.
5.1 Delivery dates and deadlines are only valid if expressly confirmed by us. Delivery deadlines start from the date of our order confirmation, but not before all details of the order have been completely clarified and not before the customer has provided any documents to be obtained and not before any agreed-upon down payment has been received.
5.2 The delivery period ends on the day when the goods leave the delivery site or are stored in case of delivery impossibility.
5.3 Call-off orders are considered firm orders and must be accepted within 3 months, unless otherwise agreed.
5.4 Shipment is made at the expense and risk of the customer, even for "freight prepaid" shipments; risk passes to the customer as soon as the shipment is handed over to the transport operator. If the handover or shipment is delayed due to a circumstance for which the customer is responsible, the risk passes to the customer from the day of readiness for shipment.
5.5 We reserve the right to choose the method and route of shipment unless otherwise agreed in the respective order. Transport insurance is only arranged upon special request and at the expense of the customer.
5.6 We are entitled to partial deliveries, which are payable under our payment terms.
5.7 In case of force majeure or other unforeseeable and non-culpable circumstances, such as difficulties in procuring materials, labor disputes, operational disruptions, vandalism, official interventions, energy shortages, whether occurring in our business or with our upstream supplier, which prevent us from fulfilling our delivery obligations, the delivery period is extended by the duration of the hindrance and taking into account a reasonable lead time. If the hindrance is not expected to be resolved in a reasonable time, we are entitled to withdraw from the contract in whole or in part without an obligation to make subsequent deliveries or to pay damages. Such withdrawal does not affect our claims for any partial deliveries already made.
5.8 In case of delivery delay, we shall compensate the customer, after the expiry of a reasonable grace period set by the customer and with appropriate proof, for each completed week of delay at a rate of 0.5%, but in total no more than 5% of the invoice value of the delayed delivery.
5.9 Both claims for damages by the customer due to delayed delivery and claims for damages in lieu of performance, exceeding the limits mentioned in 5.8, are excluded in all cases of delayed delivery, even after a grace period set by us. This does not apply in cases of intent, gross negligence, or mandatory liability for injury to life, limb, or health. The customer can only withdraw from the contract within the statutory provisions if the delay in delivery is our responsibility. The above provisions do not imply a reversal of the burden of proof to the disadvantage of the customer.
5.10 The customer is obliged to clarify, at our request and within a reasonable period, whether they wish to withdraw from the contract due to the delay in delivery or insist on delivery.
5.11 If, at the request of the customer, shipping or delivery is delayed by more than 1 month after notification of readiness for shipping, we may charge the customer storage fees of 0.5% of the price of the items in the delivery for each month begun, but no more than a total of 5%. The parties to the contract remain free to prove higher or lower storage costs.
6. CUSTOMER'S DEFAULT IN ACCEPTANCE
6.1 If the customer is in default of acceptance or payment, the risk of accidental loss or deterioration of the goods passes to the customer at the time when the customer falls into default of acceptance. In this case, we are also entitled to set a reasonable grace period for the customer, and after its expiry, we may either store the undelivered goods at the customer's expense according to Section 5.11 or store them with a forwarder. Our rights to withdraw from the contract and demand damages remain unaffected.
6.2 As part of a claim for damages, we can demand 30% of the agreed price as compensation without proof, provided the customer does not prove that no damage occurred or that the damage was significantly lower than the lump sum.
7.1 The contractual partner must check the goods for defects immediately upon delivery. Complaints about obviously defective or obviously different quality of the goods, or about the delivery of obviously different goods than ordered, must be reported to us in writing by the contractual partner immediately, but no later than 3 days after delivery or, if the defect was not recognizable upon immediate examination, 1 week after the defect is discovered. Failure to report obvious defects in a timely and proper manner results in the loss of warranty rights. The inspection and complaint obligations under § 377 HGB remain unaffected.
7.2 Claims for defects do not exist in the case of only minor deviations from the agreed quality or only minor impairment of usability. Commercial and industry-standard tolerances do not justify a complaint. Short and excess deliveries of up to 10% must be accepted by the customer.
7.3 Defects in part of the delivery do not entitle the complaint about the entire delivery.
7.4 In the case of a justified and timely complaint, we initially reserve the right to subsequent performance at our discretion, i.e., the rectification of defects or the free replacement of the defective goods returned by the customer with new goods in accordance with the contract (replacement delivery). Only after two unsuccessful attempts at subsequent performance can the customer demand withdrawal from the contract or a reduction in the remuneration.
7.5 For claims for damages, Section 8 applies. Claims by the customer against us and our vicarious agents for other or further defects other than those regulated in Section 7 are excluded.
7.6 If the customer complains about the delivery or parts thereof, no part of the disputed goods may be consumed, processed, or further delivered. If this is done, the complaint becomes void.
8. PLACE OF PERFORMANCE, JURISDICTION, APPLICABLE LAW, FINAL PROVISIONS
8.1 The place of performance for all obligations arising from the contractual relationship is Ostelsheim.
8.2 For all present and future claims arising from the business relationship with merchants, including bill and check claims, the exclusive place of jurisdiction is Böblingen.
8.3 The legal relationship between the parties to the contract is governed exclusively by German law.
8.4 If one of these provisions is invalid, this does not affect the validity of the other provisions of our delivery and payment conditions.