MAGRO Verbindungselemente GmbH general purchasing conditions
1. Contract conclusion
1.1 MAGRO Verbindungselemente GmbH (hereafter MAGRO) places orders solely on the basis of its general purchasing conditions. Other conditions shall not become part of the contract, even if MAGRO does not expressly object to them. If MAGRO accepts delivery/services without expressly raising
objections, this in no way implies that MAGRO agrees to the supplier's delivery conditions. The supplier shall sign a declaration of agreement with MAGRO's general purchasing conditions upon transfer of offers. In the absence of such an express declaration, execution of the order shall be
considered acceptance of MAGRO's general purchasing conditions. These general purchasing conditions shall also apply to all future contractual relations with the supplier.
1.2 Should the supplier submit a bid as the result of a request from MAGRO, the supplier shall adhere exactly to the request from MAGRO and shall expressly indicate any deviations from the request.
1.3 If the supplier does not accept an order in writing within 10 working days after receiving it, MAGRO reserves the right to cancel the order.
1.4 Only orders placed in writing are legally binding. Verbal orders or orders placed over the telephone require subsequent written confirmation to be legally valid. The above also applies to additional verbal agreements and amendments to the contract. Services provided or orders executed without a written contract will not be accepted. Orders, forecast delivery schedules, as well as alterations and endorsement thereto can be executed by means of electronic data transfer or machine-readable storage media. Orders concluded informally, are considered commercial letters of confirmation.
1.5 Compensation for visits or generating offers, projects, etc. will not be made unless expressly agreed to or if there is no legal claim to such compensation.
1.6 If MAGRO can present a transmission report proving that MAGRO sent a declaration by fax or electronic data transmission, it will be assumed that the supplier has received said declaration.
1.7 The supplier shall treat conclusion of contracts as confidential and may only indicate a business relationship with MAGRO in said supplier's promotional materials after receiving express written permission from MAGRO.
1.8 The contractual partner is obligated to treat all of the technical and commercial details that the partner is exposed to over the course of the business relationship as trade secrets. Sub-contractorsshall make similar assurances.
1.9 MAGRO may make alterations to the article of sale even after conclusion of a contract, in so far as said changes can be reasonably expected of the supplier. Such contract alterations shall take the consequences for both sides into consideration, especially those relating to added or reduced costs as well as the effect on delivery dates.
2. Prices, shipping, packaging
2.1 The prices agreed upon are fixed and are not subject to additional costs of any kind. All of the costs for packaging and transport to the address or locations given by MAGRO shall be included in this price as well as the costs of customs formalities and customs fees. Should the price be stated "exworks", "ex-warehouse", or in like manner, then the shipping company prescribed by MAGRO shall be charged with shipping. All of the costs that arise until transfer of goods to the freight forwarder including loading and cartage shall be borne by the supplier. If no prices are indicated in the order, the suppliers current list prices with the standard trade discounts are valid. The agreement pertaining to performance location shall not in any way be affected by the pricing scheme.
2.2 Delivery notices, waybills, invoices and all other correspondence shall include the MAGRO order number. Offers shall include a request number.
2.3 MAGRO will only receive the quantities ordered. 10 % under or over delivery is allowed. Any over or under deliveries in excess of 10% are only permissible after coordination with MAGRO.
2.4 Delivery is at the risk of the supplier. The risk of any damage, including accidental destruction, shall be assumed by the supplier until the goods reach the address or use location indicated by MAGRO.
2.5 The supplier's responsibility for packaging recycling and disposal shall be carried out according to legal guidelines. The goods shall be packed in such a manner as to prevent damage in transit. Only enough packaging materials shall be used as necessary to fulfil this purpose. Only environmentally friendly materials shall be used to fulfil this purpose. If by way of exception, the price of packaging is included in the invoice, MAGRO reserves the right to send the packaging back carriage free to the supplier and demand payment of 2/3 of the value listed on the invoice for the packaging, if the packaging is still in good condition.
2.6 In addition, the transport and packaging regulations of MAGRO Verbindungselemente GmbH are valid in their current status.
3. Invoicing and payment
3.1 Invoices shall be presented, to the extent that they are necessary for clarity, with all corresponding documentation and data upon completion of the delivery in a legally valid form. MAGRO reserves the right to withhold recoupment until presented with a valid invoice. The actual quantities, weights, or other units on which the delivery is based, as well the price agreed upon are the criteria that determine payment.
3.2 Payment will be performed by standard commercial means. Payment will be made within 14 days 3 % , 30 days 2 % or 90 days net.
3.3 In so far as material testing certificates has been agreed upon, they shall be an essential component of the delivery and shall be presented to MAGRO together with the delivery. The certificates must be presented to MAGRO within 5 days of receipt of the invoice. The payment period
does not begin until the agreed-upon certification has been received.
3.4 Payment of an invoice shall not be seen as relinquishment of the right to issue a notice of defects pertaining to the invoiced goods. MAGRO reserves the right to refuse payment for faulty goods corresponding to their proportion to the total value until the order has been properly filled.
3.5 .The supplier shall provide adequate security in the form of a letter of credit from an accredited major German bank in order to receive prepayment.
4. Date of delivery, delayed delivery, force majeure
4.1 The negotiated delivery dates are binding, the supplier is in default should a fixed delivery date elapse, this does not require issuance of a warning. Essential for determining adherance to the delivery date or delivery time period for outstanding obligations is the reception of the goods at the receiving location or location of use given by MAGRO. Should an acceptance be required, the supplier will be in default without issuance of warning, if said supplier does not execute the performance on the agreed date or executes it in such a manner that the acceptance can be refused (Art. 640 paragraph 1, clause 2 BGB (German Civil Code).
4.2 If the supplier realizes that the delivery date agreed upon cannot be met for whatever reason, the supplier shall notify MAGRO immediately in writing, giving the reasons for the delay and the probable duration of the delay.
4.3 If the supplier is in default resulting from failure to meet the delivery date, MAGRO reserves the right to demand liquidated damage amounting to 0.1% of the order value per business day, totaling no more than 10% of the total order amount. The right to exercise the collection of liquidated damages can be excercised until payment of the invoice. Liquidated damages shall be deducted from damage claims resulting from the default.
4.4 The supplier may only cite a failure by MAGRO to supply the necessary documents, if the supplier sends a written request for the documentation and does not receive the documents within a reasonable amount of time.
4.5 Force majeure frees the contractual partner from obligation to perform over the duration of the disruption and to the extent of its disruption. The contractual partner will nonetheless immediately attempt to provide necessary information and to adapt their obligations in good faith to the changed conditions. MAGRO is entirely or partially freed from the obligation to accept the ordered delivery/services and reserves the right to withdraw from the contract, if the delivery/services are no longer utilizable from an economic point of view due to the delay caused by force majeure.
4.6 MAGRO reserves the right to return early deliveries at the cost of the supplier. Should an early delivery not be returned, the supplier shall assume the costs and risks created by storage of the goods at MAGRO. MAGRO reserves the right to execute payment on the agreed date should a delivery be
delivered before the date agreed upon.
4.7 MAGRO only accepts partial deliveries after giving express agreement. The remaining quantity from negotiated partial deliveries shall be itemized.
The supplier is liable for every type of contractual violation in accordance with statutory provisions insofar as they are not regulated in another manner in these terms and conditions.
6.1 Stipulated specifications are essential aspects of this contract and may only be amended by mutual consent. Every binding description of the scope of delivery or drawings shall be considered specifications.
6.2 The supplier is obligated to use environmentally friendly products and processes to the extent that they are technically and economically feasible for the products/services provided and also for supplies or additional services provided by third parties. The supplier is liable for environmental compatibility of the products delivered and packaging material used, as well as for all damages resulting from violation of statutory disposal obligations. The supplier will present a certificate of inspection for the goods delivered should MAGRO request one.
6.3 MAGRO shall inform the supplier immediately in writing of any faults with the goods/services or damages resulting from transport as soon as they are discovered in the orderly course of business; within ten working days of the reception of the delivery at MAGRO at the latest. Thus the supplier waives the right to defense based on delayed claims.
6.4 The agreed-upon characteristics of an article, which MAGRO expects due to public statements by the salesperson, the company, the manufacturer (Art. 4, paragraphs 1 and 2 of the German Product Liability Act [German: Produkthaftungsgesetz]) or its representatives, especially advertisements or the labeling of certain characteristics are seen as the stipulated characteristics unless these contradict the stipulated characteristics. The above is not valid if the contractual partner was not aware of such statements and was not required to be aware of them, that the statements were valid at the signing of the contract, or that such statements were had no influence on the purchase decision.
6.5 MAGRO generally reserves the right to select the form that the supplementary performance will take, even in service contracts, unless the contractual partner has the right to refuse supplementary services or MAGRO selects a supplementary performance from the company that is unreasonable.
6.6 MAGRO itself can correct faults in the delivered goods or services after the period for providing appropriate supplementary performance has expired and demand damages for the resulting costs, if the supplier has not justifiably refused to provide the supplementary performance. The statutory provisions for self performance in works and service contracts (Art. 637 BGB German Civil Code) apply to the purchase agreement. Regardless of the statutory provisions, MAGRO can remedy the faults itself at the cost of the supplier in pressing situations especially to protect against an acute threat resulting in extensive damages even without specifying a time period for providing supplementary performance to remedy the deficiency.
6.7 The guarantee period is 24 (in words: twenty four) months, insofar as nothing else has been expressly agreed. The guarantee period begins with the transfer of the sale article to MAGRO or to a third party named by MAGRO at a prescribed receiving location or point of use. insofar as transfer
dates have been arranged, the guarantee and warranty period begins with the successful transfer. Should the transfer be delayed due to no fault of the supplier, the warranty period begins 12 (in words: twelve) months at the latest after the delivery item is available for receipt.
6.8 Should a deficiency appear in the first 12 months (guarantee period) of the warranty period it shall be assumed that this deficiency existed when risk was transferred, unless this assumption does not correspond to the type of object or deficiency.
6.9 For delivery items that are taken out of operation to be examined for faults and/or to have fauldts remedied, the running guarantee or warranty period shall be extended for the period of time equal to the operational delays caused by the delivered parts during the examination or removal of said deficiency.
6.10 The guarantee or warranty period begins from the time of delivery of the improved or replacement parts, in addition to the legal restrictions.
6.11 Claims arising at the beginning of the warranty period or during the warranty period expire in a manner corresponding to the statutes of limitations. The period of the statute of limitations begins once the claim has been made.
6.12 Should there be defects of title, the supplier shall free MAGRO from all possible claims made by third parties. The statutes of limitations for defect of title is three years. Said statute of limitations begins at the end of the year, in which the claim is made and MAGRO finds out about the
circumstances in which the claim arose and who the debtor is in order to not engage in gross negligence, which will then last for ten years after filing regardless of knowledge or grossly negligent ignorance.
6.13 Should MAGRO be forced to take back goods resulting from deficiencies in the articles or services provided by the contractual partner, reduce the purchase price or remuneration, or pay damages or reimburse expenses to the customer, there is no need to set a deadline as required per Art. 437 BGB German Civil Code for the contractual partner due to the claims made against MAGRO for deficiencies. The warranty period named above begins in this case with the transfer of risk to MAGRO's customer. The statute of limitations for the claims listed above begins no sooner than two months after MAGRO has fulfilled its customer's claims. This suspension of expiration ends five years after the contractual partner has delivered the goods or the services to MAGRO.
6.14 Should claims be made against MAGRO resulting from a violation of government safety regulations or resulting from domestic or foreign product liability regulations, and these claims arise from a product delivered by the supplier, MAGRO reserves the right to demand damages from said
supplier, in so far as the damages were caused by the products that the said supplier delivered. These damages also include the cost of any necessary product recalls. Insofar as a deficiency appears in a part received from a supplier, it shall be assumed that the fault lies solely within the supplier's scope of responsibility.
6.15 The supplier shall perform state of the art quality assurance testing appropriate to the type and extent of the order and provide evidence of such testing upon MAGRO's request. Insofar as MAGRO deems it necessary, the supplier will sign a corresponding quality assurance agreement with MAGRO.
6.16 The supplier shall be insured against all risks arising from product liability including the risk of a product recall to an appropriate degree and to present said insurance policy to MAGRO for viewing upon request.
7.1 The supplier guarantees and assures that all deliveries/services are state of the art and correspond to the relevant statutory provisions as well as the statutes and principles set down by government authorities, professional associations and trade associations. Should any deviations from these statutes be required, the supplier must obtain written approval from MAGRO. This approval does not in any way limit the supplier's guarantee obligations. Should the supplier have any doubts about the form of execution desired by MAGRO, then the supplier shall immediately state this in writing.
7.2 The supplier guarantees and assures that all deliveries are free from any intellectual property claims by third parties, and especially that deliveries and the use of the delivered articles do not violate any patents, licenses or other third party intellectual proprietary rights within Germany. Insofar as the supplier knows that MAGRO will distribute his products in certain other countries besides Germany, then the above is also valid for said countries.
8. Intellectual property rights
8.1 The supplier frees MAGRO and MAGRO's customers from all third party claims resulting from intellectual property rights violations and will bear all the costs that MAGRO has to pay in association with these claims.
8.2 MAGRO reserves the right to purchase the approval to use the delivered articles and services in question from the owner of the intellectual property rights at the cost of the supplier, while acting in accordance with the due business diligence.
9. Foreign transactions
Insofar as a supplier is based outside of Germany the following supplementary conditions apply:
9.1 German law with the exclusion of the Convention on Contracts for the International Sale of Goods (CISG) is applicable to the relationship between the supplier and MAGRO.
9.2 The contractual language is German. Insofar as the contractual partners use an additional language, the German version of the contract takes precedent.ang.
10 Final provisions
10.1. Should individual portions of these general purchasing terms and conditions be invalidated, the validity of the remaining terms will not be affected.
10.2 The supplier does not reserve the right to relinquish his obligation to MAGRO without previous written agreement from MAGRO, which may not be unjustifiably denied.
10.3 MAGRO will treat the supplier's personal information in a manner compliant to the German Information Protection Act (Bundesdatenschutzgesetz).
10.4 Insofar as nothing else has been expressly agreed upon, the place of performance for the delivery obligations is the address or point of use; for all remaining obligations of both parts, it is Bad Mergentheim.
10.5 Suits resulting from any disputes caused by this contractual relationship, whether the supplier is a businessman, a legal entity of pubic law, or public fund asset, shall be filed at the court with jurisdiction over MAGRO's main offices. MAGRO also reserves the right to sue the supplier at any other permissible location
Valid as of 09/2009