Terms of sale and delivery
Status: April 1, 2016
1. Scope of application
1.1 Unless expressly agreed otherwise, orders shall be accepted and executed in accordance with the following Terms and Conditions of Sale and Delivery. This shall also apply to all subsequent orders without any special reference. Precious metal sales, repairs and assemblies are subject to separate conditions.
1.2 We (hereinafter: the Supplier) hereby expressly object to all terms and conditions of the Purchaser.
1.3 Agreements deviating from these terms and conditions shall be made in writing. Oral agreements shall be confirmed in writing without delay.
1.4 These terms and conditions shall apply to business transactions with entrepreneurs.
2. Offers, documents and industrial property rights
2.1 Unless otherwise specified in the offer, offers shall be valid for a period of 4 weeks. We reserve the right of prior sale. A delivery obligation shall only be established by an express confirmation of the offer by the supplier.
2.2 Unless expressly declared as binding in the offer, the approximate values customary in the industry shall apply to all technical data, material specifications, etc.. Notifications in the event of changes shall only be made if a quality guarantee is affected.
2.3 All documents made available to the Purchaser by the Supplier shall remain the property of the Supplier; they may not be made available to third parties without the prior written consent of the Supplier and, if the order is not placed with the Supplier, shall be returned in full, including any copies made, without delay upon request.
2.4 The information contained in catalogs, brochures and other written documents shall be checked by the Purchaser for suitability for the intended application prior to acceptance and use. This shall also apply to the selection of suitable materials. The Purchaser shall inform himself about the possible uses of the product.
2.5 The Supplier shall not be obliged to check the correctness and/or legal conformity of the Purchaser's specifications and/or requirements; the Purchaser shall be solely responsible for these specifications and/or requirements. This shall also apply in particular to liability for any infringement of industrial property rights.
2.6 The Purchaser warrants that the execution of the order does not involve any infringement of industrial property rights by products provided, by drawings or samples of the Purchaser or third parties, shall conduct any defense proceedings at its own expense and shall reimburse the Supplier for any related expenses.
2.7 Drawings, drafts and discussion papers drafted in the course of consulting services provided in the course of contract negotiations shall not be binding. Claims of any kind whatsoever cannot be asserted by the Purchaser against the Supplier and its employees on the basis of such documents or services, unless they have acted intentionally or with gross negligence.
2.8 Requested samples shall be invoiced by the Supplier on a time and material basis.
3. Order
Orders shall be deemed accepted only upon their written confirmation by the Supplier. The text of the order confirmation shall be decisive for the content of the contract thus concluded and the nature and content of the order. The Purchaser is obliged to check all parts of the order confirmation and to give notice of any discrepancies in writing without delay.
4. Delivery time and scope
4.1 Delivery times shall begin with the complete technical and commercial clarification and shall end with the dispatch or the notification of readiness for dispatch. Compliance with the delivery time shall further be subject to compliance with the obligations of the Purchaser, in particular any payment obligations.
4.2 Changes requested by the Purchaser shall cause the delivery period to start again with the date of the changed order confirmation.
4.3 The Supplier shall not be liable for delays in delivery due to force majeure and similar events beyond its control and unforeseeable, such as refusal of official permits, labor disputes, etc. Delivery periods shall be extended by the period of the hindrance.
4.4 In cases of non-compliance with the delivery contract or delayed delivery, even after expiry of a deadline set for the Supplier, the Supplier shall only be liable in the event of intent, gross negligence or breach of material contractual obligations - cf. for the definition of material contractual obligations clause 9.2. This provision does not imply a change in the burden of proof to the detriment of the Purchaser.
4.5 The Purchaser's right to rescind the contract after fruitless expiry of a reasonable period of grace granted to the Supplier shall remain unaffected.
4.6 Partial deliveries shall be permissible insofar as they are reasonable for the Purchaser.
5. Place of delivery, transfer of risk
5.1 Deliveries shall be made ex production site or warehouse of the Supplier at the expense and risk of the Purchaser. The choice of the mode of shipment shall be made by the Supplier at its reasonable discretion, unless the Purchaser specifies otherwise.
5.2 In the event of delivery without installation or assembly, the risk with respect to the delivery item shall pass to the Purchaser upon handover of the products to the Purchaser, the forwarder or carrier, but no later than upon leaving our works or warehouse, even if carriage paid delivery has been agreed. In the event of default of acceptance on the part of the customer, the risk shall pass upon readiness for shipment, even if default of acceptance only occurs after readiness for shipment. Upon request and at the expense of the Purchaser, the shipment shall be insured by the Supplier against breakage, transport and fire damage.
5.3 In the case of delivery with installation or assembly, the risk in respect of the delivery item shall pass to the Purchaser on the day of acceptance, but no later than on the day on which the delivery item is taken over by the Purchaser. Acceptance shall be deemed to have taken place unless the Purchaser expressly refuses acceptance within 14 days of being requested to do so.
6. Prices
6.1 All prices are ex works plus freight/ postage, packaging, insurance and the applicable statutory VAT. Costs for commissioning, assembly or similar services shall be invoiced separately. Services shall be invoiced separately.
6.2 If precious metal transactions are shown separately on the invoice, the daily price valid on the day of delivery according to the official stock exchange quotations shall generally apply.
7. Payment
7.1 Unless otherwise agreed, the agreed price shall be payable in EURO within 30 days after the due date and receipt of an invoice or equivalent request for payment without deduction and free of charges. The risk and costs of the payment transaction shall be borne by the Purchaser.
7.2 In the event of late payment, interest on arrears shall be charged at a rate of 8 percentage points above the base interest rate pursuant to § 247 BGB.
7.3 The purchaser shall only have the right to withhold or offset payment against undisputed or legally established claims.
7.4 Costs for the provision of security, "Letter of Credit" or similar, in the case of foreign transactions shall be borne by the Purchaser.
8. Liability for material defects
8.1 The Purchaser shall inspect the Products for any defects immediately upon receipt. Obvious defects shall be notified to the Supplier in writing within 5 working days, hidden defects within 5 working days after discovery.
8.2 Defects notified to the Supplier on the products delivered by it within 12 months after commissioning, but no later than 15 months after transfer of risk, shall be repaired or replaced by the Supplier at its own discretion, to which it shall also be entitled after repeated unsuccessful repairs. The supplier shall be granted reasonable time and opportunity to do so.
8.3 If the defect cannot be remedied within a reasonable period of time, the Purchaser shall be entitled to withdraw from the purchase contract or to demand a reduction of the remuneration (abatement).
8.4 For defects which could have been detected by the Purchaser with reasonable effort prior to installation or processing, all claims based on liability for material defects shall lapse as soon as the product has been processed or installed. This shall not apply if the Supplier's executive employees or vicarious agents are guilty of intent, gross negligence, injury to life, body or health, if liability exists due to a breach of a material contractual obligation (see 9.2 for definition) or if liability is mandatory under the Product Liability Act.
8.5 No warranty for a specific service life of the products, in particular under more difficult and previously unknown operating conditions, shall be assumed by the Supplier. Claims in case of premature destruction are excluded.
8.6 For products which have been manufactured according to drawings or specifications of the Purchaser, the Supplier shall only assume a liability for material defects for execution in accordance with the specifications. The mandatory liability under the Product Liability Act as well as for intent and gross negligence shall remain unaffected.
8.7 The liability for material defects shall not apply to natural wear and tear, to damage caused after the transfer of risk as a result of incorrect or negligent handling, or through use not in accordance with the specifications or the contract.
8.8 Liability for material defects which do not or only insignificantly affect the value or the usability is also excluded.
8.9 Claims under a right of recourse pursuant to §§ 478, 479 BGB (German Civil Code) shall only exist if the claim by the consumer was justified and only to the extent provided by law, but not for goodwill provisions not agreed with the supplier and shall require the compliance with the own obligations of the party entitled to recourse, in particular the compliance with the obligations to give notice of defects.
9. Liability
9.1 Claims for damages and reimbursement of expenses by the Purchaser - irrespective of the legal grounds, including claims in tort or for compensation for damage caused by defects or consequential damage caused by defects, for culpable breach of ancillary contractual obligations or for loss of profit - shall be excluded. This shall not apply to the extent that the Supplier's executives or vicarious agents are guilty of intent, gross negligence, injury to life, body or health, liability for breach of a material contractual obligation exists or liability under the Product Liability Act is mandatory.
9.2 In the event of a breach of material contractual obligations which is not due to intent or gross negligence and which is also not a case of injury to life, limb, health or a guarantee of quality, liability shall be limited to compensation for the foreseeable damage typical of the contract. Material contractual obligations shall be understood to be obligations the breach of which jeopardizes the purpose of the contract, e.g. in the event of a substantial delay, a not merely insignificant breach of duties to cooperate or provide information or a not merely insignificant breach of duties with which the contract stands or falls.
9.3 If the Purchaser, for its part, provides material for the production of products ordered by it, such material shall only be insured with the Supplier against theft. Liability for the loss or deterioration of this material shall only exist in the event of intent or gross negligence on the part of the Supplier.
9.4 Advice given by the Purchaser, in particular on the use of the delivery item, shall only be binding on the Supplier if it has been given or confirmed in writing.
9.5 The statutory provisions on the burden of proof shall remain unaffected.
10. Retention of title
10.1 The delivered product (hereinafter: Retained Product) shall remain the property of the Supplier until full payment of all due claims which the Supplier owns or acquires from the business relationship with the Purchaser. During the existence of the retention of title, neither a seizure nor a transfer by way of security or an assignment of the claim may be made by the Purchaser without the consent of the Supplier. The Supplier shall be notified immediately of any seizure by a third party.
10.2 If the product subject to retention of title is processed by the Purchaser into a new item, the processing shall be carried out for the Supplier. Acquisition of ownership by the Purchaser pursuant to § 950 BGB (German Civil Code) shall be excluded. If the Retained Product is processed, mixed or transformed with products not belonging to the Supplier, the latter shall acquire co-ownership of the new item in proportion to the invoice value of the products delivered by it and the other products at the time of processing. The Purchaser shall keep the new item for the Supplier with the due care of a prudent businessman.
10.3 The new item shall be deemed to be a product subject to retention of title within the meaning of these Terms and Conditions. The Purchaser hereby assigns to the Supplier its claims arising from a resale of these new Retained Products in the amount of the value corresponding to the value share of the Retained Products in the new item in the ratio of the invoice value of the Retained Products to the products brought in by other parties. If the resale is made together with other products not belonging to the Supplier at a total price, the Purchaser hereby assigns to the Supplier its claims from the resale in the amount of the share corresponding to the value of the Retained Products in the total delivery.
10.4 The Purchaser shall also assign to the Supplier by way of security the claims against a third party arising from the combination of the Retained Products with real property.
10.5 The Purchaser is revocably entitled to collect the claims arising from a resale in the ordinary course of business. Irrespective of this, the Supplier shall have the right to collect the receivables itself if the Purchaser has breached its obligations under this contract, in particular in the event of default in payment. Upon request, the Purchaser shall name the debtors of the assigned claim and notify them of the assignment. In case of doubt, the assertion of the retention of title and in particular the demand for surrender shall constitute a rescission of the contract.
10.6 The Supplier undertakes to release the securities to which it is entitled at its discretion at the request of the Purchaser to the extent that the realizable value of these securities exceeds the claims to be secured by more than 10%.
11. Place of jurisdiction
11.1 The law of the Federal Republic of Germany shall apply exclusively to the exclusion of the UN Convention on Contracts for the International Sale of Goods (UNCITRAL Convention). The language of the contract shall be German.
11.2 If the Purchaser is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for both parties, also for disputes in proceedings concerning documents, bills of exchange or checks, shall be the competent place of jurisdiction of the Supplier. The Supplier shall also be entitled to sue the Purchaser at any other statutory place of jurisdiction.
12. Severability clause
Any invalidity of individual provisions of these General Terms and Conditions shall not affect the validity of the other paragraphs. Should any provision be or become invalid, the contracting parties shall replace the invalid provision by such valid provision which comes as close as possible to the economic and legal purpose of the invalid provision.
MAGNETIC SENSE GmbH
Kelterstr. 59
D-72669 Unterensingen
Telephone: (07022) 40 590 - 0
Fax: (07022) 40 590 - 29
Email: info@magnetic-sense.de
www.magnetic-sense.de
Register court: Local court Stuttgart HRB 768995, Managing director: Markus Lang, VAT no.: DE 18 56 23 98 3 Commerzbank AG Leonberg, BIC: COBADEFF 624, IBAN: DE72 6004 0071 0831 3447 00
