GENERAL TERMS AND CONDITIONS
1 Scope, Definitions, General
1.1 These General Terms and Conditions of Business shall apply exclusively; we shall not recognize any terms and conditions of business that conflict with or deviate from these Terms and Conditions, in particular the Purchaser’s terms and conditions of purchase, unless we have expressly agreed to their validity in writing. Our General Terms and Conditions of Business shall also apply if we carry out the delivery to the customer without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from our terms and conditions.
1.2 Within the scope of an ongoing business relationship, our General Terms and Conditions shall also apply to all future transactions with the Customer, even if they are not expressly agreed again.
1.3 A consumer within the meaning of these General Terms and Conditions of Business is any natural person who enters into a legal transaction with us for a purpose that can be attributed neither to his commercial nor to his independent professional activity. An entrepreneur within the meaning of these General Terms and Conditions of Business is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction with us, acts in the exercise of his commercial or independent professional activity. Purchaser in the sense of these General Terms and Conditions is both the consumer and the entrepreneur.
2 Conclusion of contract
2.1 Our offers are subject to change and non-binding. We reserve the right to make technical changes as well as changes in form and color within the scope of what is reasonable.
2.2 With the order request, the purchaser bindingly declares that we shall prepare an offer for the ordered delivery or service. Furthermore, the customer agrees that we may contact him via email or telephone regarding the order.
2.3 Our declarations of acceptance must be in writing to be legally effective. The same shall apply to supplements, amendments and collateral agreements.
2.4 With regard to our scope of delivery and performance, our written order confirmation or our commercial letter of confirmation shall be authoritative.
2.5 The conclusion of a contract with an entrepreneur shall be subject to the proviso that we are supplied by our suppliers at the terms and conditions customary in the industry as well as correctly and in due time. This shall only apply in the event that we are not responsible for the non-delivery, in particular if a congruent covering transaction has been concluded with our suppliers. The customer shall be informed immediately of the non-availability of the delivery/service. If he has already made a counter-performance, this will be refunded to him without delay.
3 Delivery and management of print data, order execution
3.1 Unless otherwise agreed in writing, we shall execute all orders in accordance with the print data supplied to us by the customer.
3.2 The orderer shall provide us with these print data in our specified file formats at his own expense and risk. In particular, the Customer shall be solely responsible for the completeness and correctness of the data supplied to us.
3.3 The Customer shall be obliged to provide us with the relevant data free of any so-called computer viruses; in particular, it shall be obliged to use up-to-date protection programs for this purpose. Otherwise, the customer shall compensate us for any damage.
3.4 The customer shall be solely responsible for backing up the data transmitted to us.
3.5 We can and will only check the data transmitted to us by the customer or by third parties on his behalf for obvious errors.
3.6 All print data supplied by the customer, in particular templates and data carriers, shall only be archived by us beyond the time of handover of the end product by written agreement and against separate remuneration.
3.7 If data archived by us in accordance with the agreement is lost or damaged, we shall be liable for this only in accordance with the provisions of Section 8 of this contract.
4 Prices, terms of payment
4.1 In the contractual relationship with the consumer, our prices include the statutory value added tax, unless otherwise stated. In the contractual relationship with an entrepreneur, all stated and agreed prices shall be net prices; accordingly, they shall be subject to the statutory value-added tax applicable at the time of delivery/service.
4.2 In the absence of a special agreement, all stated and agreed prices shall apply ex works. The prices do not include packaging, transport, insurance, cash on delivery charges and other ancillary costs.
4.3 Unless otherwise agreed in writing, the price list current at the time of conclusion of the contract shall apply in each case.
4.4 Unless otherwise agreed, the payment due shall be made by SEPA or direct debit.
4.5 We shall accept checks and bills of exchange only upon special written agreement and on account of payment.
4.6 The receipt of payment by us shall always be decisive for the timeliness of the payment owed.
4.7 Advance payments and payments on account shall not bear interest.
4.8 If the customer defaults on a payment owed, all other payments owed by him shall be due for immediate payment without any deduction.
4.9 We shall be entitled to set off payments against the customer’s older debts first, despite the customer’s stipulations to the contrary, in which case we shall inform the customer immediately of the nature of the set-off. If costs and interest have already been incurred, we shall be entitled to set off the payment first against the costs, then against the interest and finally against the main performance.
4.10 If we become aware of circumstances which, according to our due commercial discretion, are likely to call into question the creditworthiness of the customer, in particular if a debit note, a check or a bill of exchange is not honored or charged back or if the customer is in default of payment for more than two weeks, we shall be entitled to demand immediate payment of our total debt. We shall then also be entitled to perform outstanding deliveries or services only against advance payment or against provision of securities and to postpone further work on current orders until then.
4.11 Offsetting with counterclaims shall be excluded unless these counterclaims have been recognized by us or have been legally established. If the customer is an entrepreneur, he may only exercise a right of retention if his counterclaim is based on the same contractual relationship and the claim underlying the right is legally established or undisputed.
5 Shipping, packaging and transfer of risk
5.1 Unless otherwise agreed in writing in individual cases, delivery is owed ex works.
5.2 If the Customer is an entrepreneur, the risk shall pass to the Customer as soon as the goods leave the supplying plant or are made available to the Customer or to a person commissioned by the Customer (including a commissioned carrier) at the supplying plant; this shall also apply if we bear the freight costs. If the purchaser is a consumer, the risk shall not pass to the purchaser until the goods have been handed over, even in the case of an agreed sale by dispatch.
5.3 If shipment or collection of the goods is delayed or made impossible as a result of conduct attributable to the Purchaser, the risk shall pass to the Purchaser upon notification that the goods are ready for shipment.
5.4 Goods notified as ready for dispatch in accordance with the contract must be called off immediately, otherwise we shall be entitled to dispatch them at our discretion at the expense and risk of the orderer or to store them at our discretion and to invoice them immediately.
5.5 In the absence of special instructions from the Purchaser, we shall determine the forwarding agent, the shipping route and the means of shipment without assuming any obligation for the cheapest shipment.
5.6 We shall only provide special packaging protection, transport and transport aids and transport insurance at the express written request of the customer; the costs incurred shall be borne by the customer.
5.7 The customer shall ensure that the ordered goods are accepted at the stated delivery address at the usual delivery times, in particular those of Deutsche Post AG. Otherwise, in addition to further shipping costs, the purchaser shall bear the costs of the increased handling expenses incurred by us, which shall be agreed at a flat rate of € 25; this shall not affect the purchaser’s right to prove that the damage was less.
5.8 In the event of apparent transport damage, the Purchaser shall have the damage ascertained upon receipt of the goods in such a way that claims for damages against the carrier are possible on the basis of these ascertainments. If the purchaser does not adequately comply with this obligation, he shall bear all the consequences resulting therefrom.
5.9 The Customer shall ensure that he himself or, if applicable, the consignee of the goods immediately ascertains the flawless condition of the goods after their delivery. In the relationship with the entrepreneur, the statutory provisions of the inspection and complaint obligations remain unaffected.
6. delivery times, damage caused by delay
6.1 Delivery dates or periods shall only be binding if expressly agreed in writing. They shall commence upon receipt of our order confirmation by the Purchaser, but not before complete clarification of all details of the order, not before receipt of the data, documents and, if applicable, approvals to be procured by the Purchaser and not before receipt of an agreed down payment. If continuous deliveries have been agreed on the basis of a corresponding call-off by the Purchaser, we shall be released from the agreed delivery periods/delivery dates if we do not receive the call-offs as agreed, in particular late or not regularly. Compliance with the delivery dates/delivery deadlines shall also be subject to the fulfillment of the contractual obligations of the Purchaser, in particular compliance with the payment agreements.
6.2 Even non-binding delivery dates/periods are always subject to the timely clarification of all details of the order, in particular also the clarification of all technical questions.
6.3 In the contractual relationship with an entrepreneur, we shall not be bound by a binding delivery date if, despite the conclusion of a congruent hedging transaction, we have not been supplied, have not been supplied correctly or have not been supplied on time by our supplier; reference is made to the provision in section 2.5 in addition.
6.4 Delivery dates/periods specified or agreed by us shall generally refer to the time of dispatch of the goods from the factory. They shall also be deemed to have been met upon notification of readiness for dispatch if the goods could not be dispatched on time through no fault of ours.
6.5 We shall be entitled to make partial deliveries and render partial services at any time. The customer may not derive any rights with regard to the remaining partial deliveries or partial services from the delay of partial deliveries or partial services.
6.6 We do not assume any warranty with regard to the timely transport, the duration of the transport and the arrival of the goods; in this respect, our information is given without exception to the best of our knowledge, but is non-binding.
6. 7. Delays in delivery and performance due to force majeure and due to events which make delivery/service substantially more difficult or impossible for us – this includes in particular strike, lockout, export and import bans as well as other official orders, disruptions in the supply of raw materials, materials and energy for which we are not responsible, fire, operational, production and traffic disruptions, unforeseeable transport problems, machine defects for which we are not responsible, accidents and the like, even if they occur at our suppliers, their sub-suppliers or our subcontractors -, we shall not be responsible even in the case of bindingly agreed deadlines and dates. They entitle us to postpone the delivery or service by the duration of the impediment plus a reasonable start-up time or to withdraw from the contract in whole or in part because of the part not yet fulfilled.
6.8 If the impediment lasts longer than two months, the Purchaser shall be entitled, after a reasonable grace period, to withdraw from the contract with respect to the part not yet performed. If the delivery time is extended as a result of the above-mentioned events or if we are released from our delivery obligations as a result or withdraw from the contract as a result, the customer may not derive any claims for damages from this. However, we may only invoke the aforementioned circumstances if we have notified the Purchaser without delay.
6.9 The provisions of Clauses 6.7 and 6.8 above shall apply mutatis mutandis if the Purchaser is in default with its payment obligations, if it fails to comply immediately with its obligations to cooperate in clarifying commercial or technical issues or if the Purchaser has delayed performance of the contract in any other respect.
6.10 We shall be liable for damages caused by delay on the part of the customer as follows:
6.10.1 We shall be liable without limitation in the event of death or physical injury or damage to health attributable to us.
6.10.2 This shall also apply if we or our vicarious agents are guilty of intent or gross negligence with regard to the delay.
6.10.3 In the event of slight negligence, liability shall be excluded if the default relates to immaterial contractual obligations.
6.10.4 If our default relates to material contractual obligations, but if we or our vicarious agents are not guilty of intent or gross negligence, the Customer’s claim to compensation for default shall be limited to 0.5% for each full week of default, up to a maximum total of 5% of the invoice value of the deliveries and services affected by the default.
6.10.5 In addition, the explanations of the limitation of liability according to clause 8. of these General Terms and Conditions shall apply.
7 Liability for defects (warranty)
7.1 The following shall apply to the existence of defects:
7.1.1 Insignificant deviations in color, quality, etc. shall not be deemed defects.
7.1.2 In the case of goods specially manufactured for the Purchaser, excess or short deliveries of up to 10% of the quantity ordered shall be permissible, with the exact quantity delivered being invoiced.
7.1.3 The following shall apply to our samples and specimens (hereinafter referred to as samples): Our samples are often manufactured under different conditions than those given in the subsequent production process. It is therefore unavoidable that the goods to be supplied by us and our samples are not always completely identical. The properties of our samples are therefore not to be regarded as the agreed properties of the goods to be supplied by us within the meaning of Section 434 I Sentence 1 of the German Civil Code (BGB). Rather, only the relevant technical standards and any expressly contractually agreed quality shall be decisive for our deliveries of goods.
7.1.4 If the Purchaser is an entrepreneur, it shall inspect the delivery for completeness and freedom from defects immediately upon receipt. Obvious defects which are recognizable upon proper inspection shall be notified immediately by telephone and, in addition, within 10 days of receipt of the goods in writing (a fax or e-mail is sufficient). This shall apply mutatis mutandis to defects which are not obvious and which are not recognizable upon proper inspection, as soon as the Purchaser has discovered the defects. Timely dispatch shall be sufficient to meet the deadline. If the Contractor fails to comply with its inspection and notification obligations, the assertion of any warranty claims for the defects concerned shall be excluded.
7.1.5 For mutual commercial transactions between merchants, § 377 HGB shall apply in addition.
7.1.6 In the event of justified notices of defect, we shall first be entitled to rectify the defect or to make a replacement delivery. With regard to the same defect, we shall in principle be granted two attempts at subsequent performance.
7.1.7 If the subsequent performance (rectification or replacement delivery) fails, the customer may in principle demand a reduction of the remuneration (abatement) or rescission of the contract (withdrawal) at his discretion. However, if there is only a minor breach of contract, in particular in the case of minor defects, the Purchaser shall not be entitled to rescind the contract.
7.1.8 If the goods delivered by us are only partially defective, the customer may only withdraw from the contract in full if a defect-free partial delivery is of no interest to him; otherwise he shall remain obliged to accept the defect-free part of the goods.
7.1.9 The above warranty provisions shall apply mutatis mutandis to the repaired or replacement goods.
7.1.10 Warranty claims against entrepreneurs shall become statute-barred within one year of delivery of the goods, unless we are guilty of fraudulent conduct with regard to the defect in question.
8 Limitation of liability
8.1 Claims for damages and reimbursement of expenses of the Purchaser (hereinafter referred to as “Claims for Damages”), irrespective of their legal basis, in particular due to the breach of duties arising from a contractual obligation and from tort, shall be excluded.
8.2 This shall not apply in cases of assumption of a guarantee or a procurement risk.
8.3 Furthermore, this shall not apply if claims are asserted against us under the Product Liability Act, in cases of intentional or grossly negligent conduct on our part or on the part of our vicarious agents, in cases of injury to life, limb or health and in cases of breach of material contractual obligations.
8.4 The claim for damages for the breach of essential contractual obligations shall, however, be limited to the foreseeable, contract-typical, direct average damage according to the type of delivery or service, unless there is intent or gross negligence or liability exists due to injury to life, body or health.
8.5 Insofar as our liability is excluded or limited, this shall also apply with regard to the personal liability of our managing directors, employees, commercial agents and vicarious agents.
9 Advertising, our copyrights, rights of third parties
9.1 We shall be entitled to retain specimen copies of the orders as quality samples and to use them – anonymously – for advertising purposes.
9.2 Our deliveries and services do not include the transfer of copyrights. Accordingly, we reserve all proprietary rights and copyrights to our graphic designs, image and text marks, layouts, etc.. The transfer of these rights shall require a separate written agreement.
9.3 The customer shall ensure that no third-party rights, in particular copyrights, are infringed by the execution of his order. Otherwise, he shall indemnify us against all claims by third parties asserting rights against us arising from the order in question.
9.4 By placing an order with MagnWall GmbH, you give your consent to be included in our mailing list. This can be revoked at any time with an informal email.
10. reservation of proprietary rights
10.1 Until the fulfillment of all claims – in the case of entrepreneurs including all balance claims from current account – to which we are entitled against the customer for any legal reason now or in the future, the following securities shall be granted to us, which we shall release upon request at our discretion, insofar as the realizable value exceeds the claims by more than 20 %.
10.2 The delivery item shall remain our property (reserved goods) until payment has been made in full.
10.3 The customer may only sell the goods subject to retention of title in the ordinary course of business under his normal terms and conditions and as long as he is not in default.
10.4 The Customer hereby assigns to us by way of security its claims with all ancillary rights – including any balance claims – in the amount of the final invoice amount (including value added tax) of our claim, which accrue to it against its customers or third parties from the resale or for any other legal reason. We accept this assignment.
10.5 If the Purchaser has sold the claim within the scope of genuine factoring, our claim shall become due immediately and the Purchaser shall assign to us the claim against the factor taking its place and shall immediately forward its proceeds to us. We accept this assignment.
10.6 The purchaser’s authority to sell goods subject to retention of title in the ordinary course of business shall end upon his default in payment or upon our revocation as a result of a sustained deterioration in the purchaser’s financial situation, but no later than upon his suspension of payments or upon the filing of an application for insolvency proceedings against his assets. The purchaser shall then be obliged to hand over to us on request a precise list of the claims to which he is entitled with the name and address of the purchasers, the amount of the individual claims, the invoice date, etc. and to provide us with all information necessary for the assertion of the assigned claims and to allow us to check these claims.
10.7 Pledging or transfer by way of security of the reserved goods or the assigned claims shall not be permitted.
10.8 In the event of access by third parties to the goods subject to retention of title, in particular in the event of seizure, as well as in the event of any other – possibly imminent but expected – impairment of our rights, the customer shall be obliged to point out our ownership and to notify us immediately.
10.9 In the event of a breach by the Purchaser of the obligations under this Clause 10, we shall be entitled, after having granted a reasonable grace period, to demand immediate payment of the entire remaining debt for the Retained Goods or to demand security; no grace period shall be required if this could impair or endanger our rights or economic interests or if there is a serious breach by the Purchaser of the provisions under this Clause 10. If the customer does not pay the entire remaining debt within 7 days after a corresponding request by us or if he does not provide the requested securities within this period, his right to use the reserved goods shall expire. We shall then be entitled to demand the immediate surrender of the goods at the customer’s expense to the exclusion of any rights of retention. In this case, the customer already now irrevocably grants us access to the location of the reserved goods and authorizes us to take them back.
10.10 Notwithstanding the Customer’s obligation to pay, we shall be entitled to sell the reserved goods repossessed by us in the open market at the best possible price or to take them over at the respective market price.
11 Applicable Law, Place of Jurisdiction, Place of Performance, Partial Invalidity and Data Processing
11.1 These General Terms and Conditions and the entire legal relationship between us and the Buyer shall be governed exclusively by the laws of the Federal Republic of Germany. The application of the law relating to the United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 (so-called UN Sales Convention) shall be excluded.
11.2 If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of performance shall be Am Mühlbach 1, 71384 Weinstadt, Germany.
11.3 If the customer is a merchant, a legal entity under public law or a special fund under public law, Stuttgart is agreed as the place of jurisdiction. However, we shall also be entitled to sue the customer at the court having jurisdiction over the customer’s place of residence or registered office.
11.4 If a provision in these General Terms and Conditions or a provision within the scope of other agreements between the customer and us is or becomes invalid, this shall not affect the validity of all other provisions and agreements.
11.5 Exclusively for our internal purposes, we shall be entitled to store and process data relating to the goods and/or services and payment transactions with the Customer.