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1. Introduction
Our General Terms and Conditions as follows are intended to create a clear situation between you as the purchaser and us as the contractor, and only apply with the respect to entrepreneurs in the meaning of para. 310, section 1 of the German Civil Code. We assume that you will take the time to read these terms and conditions before you place your order with us, so that after reading no uncertainties remain. When placing the order you have as the purchaser declared your agreement with the following provisions for the duration of our business relationship. We do not recognize any deviating terms and conditions. In each case our conditions apply without express confirmation. Agreements that deviate from our conditions apply only if confirmed in writing. Our terms and conditions also apply in all future business dealings with you as the purchaser.
2. Offer and order, delivery times, short or excess deliveries.
Our offers are non-binding. Orders of standard magnets as stated in our sliding price scale with an order volume of less than 1,000 Euro are not confirmed by us in writing. Our bill represents the order confirmation. Regarding order confirmations, supplementary agreements or changes are only valid if confirmed in writing. Retroactive changes of the order volume or of the magnet type represent an obligation for the customer to reimburse costs that have already accrued as well as to recognize possible additional costs. We reserve the copyright regarding offers and deliveries of magnets and magnet systems including all documents. The possibilities of delivery and limitations with regards to the amounts that are to be delivered remain subject to change. Agreed delivery dates will be observed as far as possible. If the delivery time is exceeded, an appropriate period of grace is to be granted. In the case of disruptions of operations, force majeure and non-delivery on the part of our suppliers, the contractor is entitle to either conduct additional delivery or to the cancellation of the contract in part or in total.
We are liable in accordance with the statutory provisions; to the extent that the delay in delivery is due to an intentional or grossly negligent breach of contract on our part, our liability for damages is limited to the foreseeable and typical damage.
This also applies to the extent to which the delay in delivery for which we are responsible is due to a culpable breach of a significant contractual obligation. When delivering magnets or magnet systems, short deliveries or excess deliveries of up to 15% of the units ordered must be accepted and paid for.
3. Price setting and conditions of payment
Our prices are stated ex factory Berlin and exclude costs for packaging, shipment and insurance, which are billed separately. The risk of transport in every case passes on to the purchaser at the time of shipping the product. There is no redemption. All prices are quoted net without the statutory value added tax, which must be added. Prices are set and bills are dated on the day of shipping. The bills are due for payment within 14 days with 2% discount or net within 30 days as of date of billing. Interest for default is charged as of the second reminder notice at the amount of 2.25% per month.
Discounts are not granted if a net balance is due in our favour. Complaints regarding bills must be advised without delay, and must be communicated in writing within a cut-off period of 14 days after receipt. Bills of exchange are not accepted; cheques are accepted only for purposes of payment. In the case of payment by cheque, payment is only recognized at the time of confirmed credit confirmation. In the case of delay on the part of the purchaser, other liabilities become due for immediate payment. Netting out and rights of retention on the part of the purchaser are barred to the extent that his counterclaims have not been accepted by us, are disputed or not determined legally valid. It is agreed that delivery may involve cash on delivery or prepayment with the discount of 3%. In the case of payments from outside Germany, we incur additional bank costs, so that for orders from outside Germany with a value of goods of less than 153 Euro we charge a lump-sum allowance to cover our costs to the sum of 15 Euro. For shipping, packaging and processing within Germany, we charge in the case of value of goods less than 40 Euro a surcharge in the amount of 16 Euro
4. Liability for defects, time limitation
Claims on the part of the purchaser due to defects presuppose that the purchaser has duly complied with his inspection and notification obligations in accordance with para. 377 German Commercial Code; notifications of defects must routinely be asserted in writing at the latest within eight days of receipt of the goods. Otherwise, notifications of defects will not be recognized. In Negotiations concerning the complaint, the contractor does not waive his right to object for reasons due to delay. The contractor is entitled to inspect the defect in situ. If a defect is recognized, it must be recognized expressly in writing. If a fault is detected for which the contractor is responsible the contractor is at his option entitled too remove the faulty article or to deliver a replacement. To correct the fault, the contractor is obliged to bear all expenses required to cover costs, the correction of the fault, in particular transport costs, transport infrastructure costs, work costs and material costs, to the extent that these have not been placed in a location different from the place of performance.
If the removal of the defect fails, or if the contractor is not willing or in a position to remove the defect or to deliver a replacement, or if he delays delivery or replacement beyond appropriate time limits for reasons that he is responsible for, the purchaser is entitled to cancel the contract or to demand a reduction in the purchase price. We are liable in accordance with the statutory provisions to the extent that the purchaser asserts claims to damages that are due to intent or gross negligence. As far as no intentional breach of contract is alleged, liability for damages is limited to the foreseeable, typical damage. This also applies in the case of a culpable breach of a significant contractual duty on our part. Liability due to culpable injury of life, body or health remains unaffected; this also applies in cases of compelling liability in accordance with the German Product Liability Act. To the extent that nothing else has been provided for in the preceding paragraphs, liability will not be recognized. Defects claims are limited to a period of twelve months as of transfer of risk.
In the case of third party products, warrantee is limited to the assignment of claims against the supplier or against the suppliers of the third party products that the contractor is entitled to. A warrantee obligation lapses if the delivered products or services provided are changed, improperly treated or processed. The contractor is not liable in the case of third party products; however, he herewith cedes his warrantee claims against third party suppliers. Notifications of defects do not represent an authorization to withhold the agreed payments or to off-set claims. The purchaser orders the product always after approval of the sampled goods. Instructions for use or processing as well as assurances of certain properties do not release the purchaser from the obligation to conduct his own examination of suitability for the respective application. With respect to us, the purchaser undertakes to inform his customers about the proper use of the products and about the danger of non-observance.
5. Joint liability and damages
Liability regarding damages beyond what is provided for in section 4 will not be recognize, without consideration of the asserted claim’s legal nature. This applies in particular to claims for damages due to fault at conclusion of contract, due to other breaches of obligations, lost profits or other pecuniary damages suffered by the purchaser or due tortious claims to compensation of property damage in accordance with § 823 BGB. to the extent that the liability for compensation of damages vis-à-vis us is mot recognized or limited, this also applies with respect to the personal liability for compensation of damages of our employees, representatives and agents.
6. Retention of title
We retain ownership to our deliveries (hereafter "products subject to retain of title") until all claims including those that arise in the future , regardless of their legal nature, have been paid, in particular also net claims that accrue to us with respect to the purchaser. This also applies when payments are made for specifically designated claims. Until passage title, the orderer must store the delivered item on our behalf and insure it in our favour and at his expense. Processing is conducted on our behalf, but without any obligation on our part, and to the exclusion of acquisition of ownership in accordance with §950 BGB. The processed product serves as our security in the amount billed for the product subject to retention of title.
Where the product is connected to or processed together with other products by the orderer that we do not own, we still retain part-ownership of the new product as a proportion of the amount billed for the products subject to retention of title (including value added tax) to the value of the other processed products at the time of connection or processing. The same applies concerning the products subject to the retention of title regarding the new product that results from the connection and/ or processing of our delivered article. The new product is considered to be a product subject to retention of title in the meaning of our terms and conditions.
The orderer may sell the products delivered under retention of his title only in the course of normal business dealings, only as long as he is not in default, and only provided he discloses our retention of title. He is not authorized to conduct other acts of disposal concerning the products subject to retention of title. The orderer´s claim arising from reselling the products subject to retention of title is already now ceded to us at the same amount regardless of whether the products subject to retention of title are sold with or after processing. The ceded claims serve to secure our claims to the amount of the value of the respective resold products subject to retention of title as well as the respective net claims, where applicable.
The orderer is entitled to collect the claim. Our right to collect the claim remains unaffected by the orderer´s right to collect the claim. Upon request by us, the orderer must inform us about the ceded claim’s debtor and notify the debtor of the assignment as well as to provide any information or documents required for collecting the claim. To the extent that the products subject to retention of title have been distrained or in other way encumbered by third parties, the orderer must inform us without delay. Asserting the claim by surrendering the products subject to retention of title does not represent cancellation of the contract. The right of the orderer to repossess the product is subject to the retention of title lapses if he does not comply with his payment obligations.
7. Place of transaction and jurisdiction
Berlin (Germany) is the place of transaction for both parties’ obligations. The place of jurisdiction for all disputes arising from the contractual relationship, including proceedings concerning bills of exchange or cheques, is as far as legally possible exclusively Berlin, provided the purchaser is a merchant (in the terms of the BGB), or does not habitually abide the Federal Republic of Germany. The contractual relationship is governed by the laws of the Federal Republic of Germany; the applicability of the United Nations Purchasing Convention is not recognized.
8. Severability clause
Should individual provisions within these terms and conditions be or become invalid, the remainder of the conditions remains unchanged. In such a case, the invalid provision is to be interpreted or amended such, that the economic purpose intended by the no longer valid provision is reached.
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