General Terms and Conditions
The following terms and conditions apply to all contracts, deliveries and other services (such as brokering), including any consulting services, that are concluded, executed or provided by MAGE® Roof & Building Components GmbH headquartered in Herzberg (Elster). In addition, these conditions also apply for the delivery companies that execute our orders in our or in their own name. Should the delivery companies’ contracts, deliveries and other services be based on own general terms and conditions, these shall additionally apply. These apply primarily for contractual relationships between the customer or buyer and the respective delivery company. They shall be made available by the delivery company on request. This also applies to all future business relations with the customer or buyer, even if these conditions are only made available on entering the business relationship.
1. Offer, Order Acceptance
Our offers are subject to change without notice. Purchase offers from customers, whether made directly or through our sales representatives, shall be binding and shall be deemed accepted by us if we do not contradict within 14 days after submission of the offer. The customer or buyer is bound to their contract offer for 14 days. An order confirmation on our part is not required. An order confirmation shall constitute a binding contract conclusion.
If nothing else is agreed, all prices are in EURO, excluding value added tax (VAT), which shall be charged at the current rate.
3. Delivery, Transfer of Risk, Shipment, Packaging
(1) The delivery takes place from the registered seat of our company or from one of our external warehouses or via the warehouse of the company fulfilling the order. Unless otherwise agreed in writing, the shipment is carried out at the expense and risk of the purchaser. In the case of purchasing contracts with a goods value of € 500 or more net, delivery is free of charge. We reserve the right to provide partial deliveries insofar as this is reasonable for our contract partner.
(2) The product is packaged in the standard commercial manner. Loaned packaging shall immediately be emptied by the contracting party and returned in perfect condition. It may not be filled with other goods or used for other purposes.
4. Quantity, Weight and Quality Tolerances
(1) We reserve the right to make excess or short deliveries of up to 10%.
(2) Quality differences and other deviations from given samples are permissible to the extent that is general practice in trade and industry. Documents associated with the order, such as illustrations, drawings, specifications of weights and dimensions, are approximate indications only.
5. Delivery Periods and Dates
(1) Delivery dates are principally non-binding, unless a binding delivery date has been agreed. The agreement of binding delivery dates shall require the written form or our written confirmation to be valid.
(2) If we or one of our delivery companies are unable to effect delivery within the agreed time, the buyer shall be entitled to withdraw from the contract insofar as he they have provided us with a grace period of at least 14 days preceded by a notification of threatened cancellation, subject to the provision in paragraph (3). Claims for compensation for delay or failure to perform are available to the customer or buyer only if the delivery has been delayed due to gross negligence or intent on the part of the contractor or seller, an institution of the contractor or an executive employee of the contractor.
(3) If the delivery is made impossible or excessively difficult as a result of force majeure, war, riots, official measures, as well as import and export barriers, closure, strikes, lockouts, operating problems, material procurement difficulties, energy shortages, lack of means of transport, extreme weather conditions or similar circumstances - even if they affect our delivery companies - due to factors for which we or our delivery companies are not responsible, we shall be exempt from the obligation of delivery and its consequences for the duration of the delay. We will immediately inform our contractual partner of the occurrence of such events. Any payment already received against the purchase price shall be refunded without delay. Where it is expected that the delay in delivery shall last longer than two months, both parties are entitled to rescind the contract. An extension of the delivery time, even in the event of a cancellation, does not entitle the customer or buyer to claims for damages. In the event of non-delivery or inadequate delivery by our delivery companies we are relieved of our delivery obligations in whole or in part. This applies only if we have made the necessary arrangements to procure the goods to be delivered by us and have carefully selected our delivery companies. In this case we undertake to cede our claims against the delivery companies to our contractual partner at their request. We shall not to be held responsible for any of the aforementioned circumstances, even where they occur during an already existing delay.
(1) Our invoices or those of our delivery companies are payable net without any deduction within 8 days from the date of invoice, unless otherwise agreed. Prior to payment of due invoices from previous deliveries, a cash discount deduction on new invoices shall be excluded.
(2) Bills of exchange shall only be accepted if this has been previously arranged, and only - as well as checks - on account of performance. Discount charges and other costs shall be borne by the drawee and must be immediately reimbursed in cash.
Furthermore, the acceptance of the bill of exchange does not defer payment of the purchase price.
(3) The contractual partner as the debtor of a claim shall be in default, at the latest 30 days after the due date and receipt of the invoice. The contractual partner or buyer shall owe the statutory interest during the delay. If the contractual partner or buyer is not a consumer, the interest rate on the payment or purchase price shall be nine percent above the base interest rate pursuant to section 288 para. 2 of the German Civil Code (BGB). The following interest rate applies to consumers in accordance with section 288 para. 1 sentence 2 of the German Civil Code.
(4) If the customer or buyer is in arrears with the payment or acceptance, all open invoices are immediately payable. In the case of non-compliance with payment obligations within the framework of the business relationship, or, in the case of a known deterioration of the financial standing of the customer or purchaser, we are entitled to make the further processing of the order and the delivery subject to a reasonable security deposit or advance payment. If our products or those of our delivery companies have already been delivered, we can, without regard to any agreed payment deadline, demand immediate payment of the entire purchase price or the total remuneration or the full outstanding amount. This also applies if it is subsequently shown that the financial situation at the time of conclusion of the contract was much worse than we had assumed. If the security deposit or advance payment is not made within a reasonable period to be determined by us, we are entitled to rescind the contract.
(5) The assertion of a right of lien or retention and offsetting with counterclaims is inadmissible, unless the counterclaims have been legally established or recognised by us.
7. Retention of Title
(1) All goods and products delivered by us or one of our delivery companies shall only be delivered under retention of title. The goods remain our property or that of our delivery company up to the complete payment of the purchase price and all other claims arising from the business relationship, including ancillary claims and claims for damages - or in case of payment by check and/or bills of exchange, until their redemption. This also applies if all or individual claims have been included in a current invoice and the balance has been established and acknowledged. To the extent that the payment is made on the basis of check/bill transactions (bills of exchange), the ownership is only transferred after unconditional clearance of the bill of exchange.
(2) The customer or purchaser may neither pledge nor assign the conditional goods (including goods resulting from the combining, mixing or processing of goods to which we have title of ownership or co-ownership in accordance with the following conditions) by way of security.
(3) In case of a breach of important contractual obligations, in particular in case of default in payment, we are entitled to withdraw from the contract. Should we exercise our right of rescission in the event of default in payment and take back the goods subject to retention of title, we shall only be obligated to issue a credit in the amount of 80 % of the invoiced purchase price. The retention of 20% of the purchase price shall be deemed fixed compensation for contract costs, freight costs, distribution costs, packaging costs and lost profits. We reserve the right to assert claims for higher compensation. The customer or buyer retains the right to prove that no damage or less damage has been incurred.
(4) The customer or buyer is obliged to notify us immediately of any threat of seizure or any other impairment of our rights or those of our delivery companies by third parties and provide us with full details of the circumstances to facilitate an intervention.
(5) If the goods subject to retention of title are inseparably mixed, blended or combined with other goods, we shall hold co-ownership of a share of the unitary item which is equivalent to the value of the goods subject to retention of title in relation to the value of the commingled goods at the time of combining, mixing and blending. If the goods subject to retention of title are treated or processed, we shall acquire ownership of the new item, which the customer or buyer shall store for us. The customer or buyer is entitled to resell the goods subject to retention of title, including items created by way mixing, blending, combining, processing or treatment, only in the ordinary course of its business operations.
The customer or buyer hereby agrees to assign to us or to our delivery companies by way of security all claims arising from the resale of the goods subject to retention of title or those resulting from the processing or treatment of these goods. We and/or our delivery company hereby accept the assignment. If conditional commodities are sold jointly with third party commodities in a
processed or unprocessed condition, the claims are assumed to only have been assigned to the value of the invoice amount of the conditional commodities supplied by us. Should the customer or buyer sell goods owned or co-owned by us or our delivery company together with other goods in which we hold no title at a total price, the contractual partner hereby assigns to us or our delivery company as prior claimants a partial amount of the overall claim corresponding to the proportional value of the goods subject to retention. The contractual partner is authorised to collect the assigned claims in trust for us.
The direct debit authorisation may be revoked if the customer or buyer does not properly fulfil their payment obligations from the underlying contract or business relationship. In case of a suspension of payment, application for or commencement of bankruptcy proceedings or other forfeiture of assets by the customer or buyer, we can further demand that the customer or buyer discloses to us the assigned claims and its debtors, provides us with all necessary information for collecting the claims, surrenders the corresponding documentation and notifies the debtors of the assignment. In addition, the client or buyer in this case hereby authorises us to notify the customers of this advance assignment.
(6) On request of the customer or buyer, we undertake to release all the security furnished to us at our discretion insofar as the value thereof exceeds our respective total receivables by more than 10%.8. Call Orders
In the case of call orders, the goods must be called off at the latest within one year after the order is complete, unless otherwise agreed. After a period of one year, we shall be entitled to invoice the goods and to demand immediate payment. We are also entitled to invoice the storage costs in accordance with the tariffs of the transportation industry. In the case of call orders, the list price valid on the day of delivery shall apply if more than four months lie between the issuance of the order and the call-up.9. Defects, Warranty
(1) The goods delivered by us must be checked immediately after receipt for their proper quality, contractual fulfilment and completeness. Complaints must be made in writing. Defects that cannot be detected during proper commercial inspection must be asserted by the customer in writing within one year after receipt of the goods, or the time limit for lodging complaints will expire.
(2) In the case of material defects that have been reported in due time, only rectification or replacement delivery may be claimed. Should rectification or replacement delivery fail, the customer or buyer is entitled to a reduction of the purchase price (reduction) or rescission of the purchase contract (withdrawal).10. Liability
Our liability or that of our delivery company is based solely on the existing agreements in these conditions. Claims for damages on the part of the contractual partner, regardless of the legal reason, including infringement of duties arising in connection with the contract or tort, shall be excluded. This shall not apply insofar as liability is mandatory by law, and in particular: in cases of intent or gross negligence; in the event of injury to life, body or health; in the event of a guarantee for the existence of a specific quality; in case of a breach of essential contractual obligations or in accordance with the Product Liability Law. The above provisions do not imply a change in the burden of proof to the detriment of the contractual partner.11. Partial Invalidity
Should individual clauses of these terms and conditions be or become invalid, this shall not affect the validity of the remaining clauses.12. Place of Performance, Place of Jurisdiction and Choice of Law
The exclusive place of jurisdiction for all present and future claims arising from the business relationship with merchants, including bills and checks receivable, shall be the current seat of MAGE® Roof & Building Components GmbH. For claims arising from business relations with merchants, including bills of exchange and checks receivable against delivery companies or by delivery companies against the customer or buyer, the exclusive place of jurisdiction shall be the respective seat of the company, branches shall be governed by the laws at the seat of the head office of the delivery company. The same place of jurisdiction shall apply if the customer or buyer has no general place of jurisdiction in Germany, or if their domicile or normal place of residence is not known after contract conclusion at the time of filing a complaint.
The relations between the contracting parties shall be governed exclusively by the laws that apply in the Federal Republic of Germany at the time of conclusion of the contract, to the exclusion of the Uniform Law on the International Sales of Goods. The contractual relationship between the customer or buyer as well as the delivery company shall be governed by the law of the respective seat of the company, branches shall be governed by the laws at the seat of the head office.
With regard to the contractual relationship between the customer or buyer and the delivery companies, we would like to explicitly emphasise the inclusion of their general terms and conditions. These General Terms and Conditions also become part of this contractual relationship and govern relations between the customer or buyer and the respective delivery company and apply in addition to the relations between the customer or buyer and MAGE® Roof & Building Components GmbH.
MAGE® Roof & Building Components GmbH, 04916 Herzberg (Elster), November 2017