General Conditions of Purchase
§ 1. General provisions
§ 1.1. These terms and conditions apply for all orders of the company MAC-GmbH — hereinafter referred to as MAC-GmbH -, unless expressly agreed otherwise. The conditions specified by the contractor, in his terms and conditions or order confirmation are hereby expressly excluded. Unconditional acceptance of order confirmations or deliveries does not constitute acceptance of such conditions.
§ 1.2. Pursuant to the first delivery under these purchase conditions, the supplier thereby also acknowledges their exclusive validity with regard to all further orders.
§ 1.3. Orders and contracts will only be deemed as binding, if they are effected in writing or confirmed in writing. The offer can only be accepted within a period of 14 days, unless otherwise agreed.
§ 2. Delivery and shipping
§ 2.1. The delivery will be made on the agreed dates, in accordance with the order or else pursuant to the subsequent instructions of the MAC-GmbH. The contractor is obliged to immediately report changes with regard to the dates.
§ 2.2. The contractor has to comply with the shipping instructions of the MAC-GmbH as well as of the freight forwarder or carrier. The order and item numbers of the MAC-GmbH have to be specified on all shipping documents, correspondence and invoices.
§ 2.3. Costs of transportation, including packaging, insurance and all other ancillary costs, will be borne by the contractor, unless expressly agreed otherwise.
§ 3. Delivery deadlines, delivery dates
§ 3.1. The delivery deadlines or -dates that are specified in the purchase orders are binding and are understood to be inclusive of receipt at the location of fulfilment.
§ 3.2. The MAC-GmbH is entitled to refuse acceptance of goods that are not delivered on the delivery date specified in the order, and to arrange for them to be returned at the expense and risk of the contractor or else store them with third parties.
§ 4. Quality and acceptance
§ 4.1 The contractor warrants that the goods correspond to the submitted requirement specifications, applicable standards and state of the art.
§ 4.2 The MAC-GmbH reserves the right to examine the goods immediately upon receipt for obvious and visible defects and only then accept them. In the event of a complaint case, the contractor may be charged with the costs of inspection and the replacement delivery. In the event of any kind of defects, the respective complaint period is 14 days, pursuant to the date on which they are ascertained. The contractor will during the warranty period waive the objection of delayed notification with regard to concealed defects.
§ 4.3. Valid as binding with regard to dimensions, weights and quantities of a delivery are the data determined pursuant to the incoming goods inspection.
§ 4.4. Goods to be delivered have in particular to meet the following requirements: German Plant Protection Act (PflSchG) or corresponding provisions of the exporting country, where expedient also further provisions that will be specified in particular cases
§ 4.5. In the case of an agreed contractual penalty for delivery delay, the right to assert a contract penalty remains reserved, even when it is not expressly asserted on the date of the acceptance of the delivery. The right to assert further reaching claims shall likewise not be subject to special preconditions with regard to the acceptance.
§ 5. Prices and payment conditions
§ 5.1 The agreed prices are maximum prices; price reductions in the time period between the order placement and payment of the invoice will be credited to the MAC-GmbH.
§ 5.2 Invoices shall be prepared without delay, stating the order and item number, pursuant to the shipment of the goods. VAT has to be separately indicated.
§ 5.3 Payment will be subject to proper delivery as well as correct pricing and calculations. Upon discovery of a defect under warranty, the MAC-GmbH is entitled to withhold payment until the fulfilment of the warranty obligation.
§ 5.4 Determination of the method of payment «Payable 30 days from the date of the invoice.» or subject to the granting of an early payment discount.
§ 6. Offsetting and assignment
§ 6.1 The contractor is only entitled to offset against undisputed or legally established claims.
§ 6.2 The assignment of claims against the MAC-GmbH is only effective, pursuant to its written consent.
§ 7. Warranty
§ 7.1. The warranty obligations of the contractor will be subject to the statutory provisions, insofar as not otherwise specified herein. The contractor will on first demand weave the MAC-GmbH from all third party claims, which are raised on account of his accountability for defects, violation of property rights of third parties or product damages with regard to his delivery. The contractor warrants the existence of appropriate product liability insurance.
§ 7.2 The warranty period is 12 months from the date of delivery at the place of performance. In the event that the statutory warranty period is longer, the latter shall apply.
§ 7.3 In the case of defective delivery, the contractor has at the option of MAC-GmbH to either effect a replacement free of charge, to grant a discount in accordance with the legal provisions on the reduced value or remedy the defect free of charge. In urgent cases, the MAC-GmbH – pursuant to consultation with the contractor – has the right at the expense of the contractor, to rectify the defects itself or arrange for them to be rectified by a third party or else procure a replacement from another source. The same shall apply if the supplier is in default with the fulfilment of his warranty obligations. In case it is determined pursuant to the statistical test methods designated in the order that the maximum permissible defect rate is exceeded, MAC-GmbH is entitled to assert deficiency claims with regard to the entire delivery, or pursuant to consultation with the contractor, to perform an inspection of the entire delivery at the expense of the contractor.
§ 7.4 In the case of replacement deliveries and repair work, the contractor shall moreover without limitation be liable to the same extent as in the case of the original delivery item, for transportation, travel and labour costs. The warranty period for replacement deliveries begins on the date of receipt of the replacement delivery.
§ 7.5 The contractor is pursuant to product liability law obliged to reimburse reasonable costs of a product recall. A notification requesting a position statement has to previously as quickly as possible, be sent to the contractor by the MAC-GmbH.
8. Information and data
Drawings, designs, samples, production rules, company internal data, tools, equipment, etc., that we have been released to the contractor on the date of the placement of the order or for the purpose of carrying out the order remain our property. They may not be used for other purposes, reproduced or disclosed to third parties and have to be kept in compliance with the diligence of a prudent businessman.
9. Property rights of third parties
The contractor assures that rights of third parties do not conflict with the intended use of the purchased goods, and in particular a violation of rights of third parties does not exist. Insofar as claims are nevertheless raised against the MAC-GmbH due to a possible violation of third party rights, such as copyright, patent and other intellectual property rights, the contractor accordingly weaves the MAC-GmbH of such claims as well as of any associated payments.
10. Data protection
The contractor hereby declares his irrevocable consent with regard to the handling or else processing of his submitted personal data for the purpose of the contract, in accordance with the statutory provisions.
11. Place of performance, place of jurisdiction and applicable law
Place of performance for liability arising from the business relationship or from the individual contracts is the respective shipping address of the company MAC GMBH.
Place of jurisdiction is the competent court at the location of the registered office of the MAC-GmbH. All legal relations between the parties shall be subject to the German law
12. Severability Clause
In the event that any provision of these General Terms and Conditions is or becomes invalid, this shall not effect remaining terms and conditions.
General conditions of sale
§ 1 Scope of application
(1) These conditions of sale apply exclusively to companies, legal entities under public law or public law special fund within the meaning of § 310 paragraph 1 German civil Code (BGB). We do not recognise contrary conditions of the customer or conditions which deviate from our conditions of sale, unless we have expressly agreed that such conditions may apply.
(2) These conditions of sale apply to all future transactions with the customer, insofar as the former relate to legal transactions that can be deemed to be of a similar nature (the conditions of sale should in any case be annexed to the order confirmation as a provident measure).
§ 2 Prices and payment
(1) The payment of the purchase price has to be effected solely on the account designated overleaf. Early payment discount is only permitted pursuant to a special written agreement.
(2) Unless otherwise agreed, the purchase price has to be paid within 10 days pursuant to the delivery. Default interest shall be charged per annum in the amount of 8 % above the applicable base interest rate. The right to assert higher damage claims remains reserved.
(3) Insofar as no fixed price agreement has been made, reasonable price changes due to changes in labour, material and distribution costs with regard to deliveries that are effected 3 months or later, following the conclusion of the contract, remain reserved.
§ 3 Offsetting and rights of lien
The customer is only entitled to the right to offset, if his counterclaims have been legally established or are undisputed. The customer is insofar only entitled to exercise a lien, if his counterclaim is based on the same contractual relationship.
§ 4 Delivery time
(1) The beginning of the delivery period specified by us, presupposes the timely and proper fulfilment of the obligations of the customer. The defence of an unfulfilled contract remains reserved.
(2) In the event that the customer is in default of acceptance or culpably violates other cooperation obligations, we are insofar entitled to demand compensation for damages incurred by us, including any additional expenses. The right to assert further reaching claims remain reserved. Insofar as the aforementioned conditions apply, the risk of accidental loss or accidental deterioration of the goods is transferred to the customer, with effect from the date on which he is deemed to be in default of acceptance or else in default of obligation.
§ 5 Transfer of risk in the case of shipment
In the event that the goods are shipped to the customer subject to his specific request, the risk of accidental loss or accidental deterioration of the goods, will pursuant to the shipment, at the latest be transferred to the customer, the moment the goods leave the factory / warehouse. This applies regardless of whether the goods are shipped from the place of performance or whoever bears the freight costs.
§ 6 Retention of title
(1) We shall reserve the right to retain title to the delivered goods until full payment of all claims arising from the contract. This also applies to all future deliveries, even if we do not always expressively make reference thereto. We are entitled to take back the purchased goods if the customer violates the contract.
(2) The customer is obliged, as long as ownership has not been transferred to him to treat the goods with care. Insofar as the ownership has not been transferred, the customer has to notify us immediately in writing if the delivered goods are seized or exposed to other interventions by third parties. Insofar as the third party is unable to reimburse us for the judicial and extrajudicial costs of a lawsuit pursuant to § 771 German Code of Civil Procedure (ZPO), the customer shall be liable for any loss incurred by us.
(3) The customer is entitled to resell the reserved goods in the ordinary course of business. The customer already as of now assigns to us the claims against the buyer arising from the resale of the reserved goods in the amount of the final invoice amount agreed with us (including VAT). This assignment shall apply regardless of whether the goods have been resold without or after processing. The customer shall moreover after the assignment still remain entitled to collect the receivables. Our entitlement to collect the receivables ourselves thereby remains unaffected. However, we will not collect the receivables as long as the customer meets his payment obligations arising from the proceeds received, is not in default of payment and in particular no application is filed against him for the opening of insolvency proceedings or else a suspension of payments exists.
(4) The handling and processing or transformation of the purchased goods by the customer always has to be made in our name and on our behalf. In this case, the expectant right of the customer to the purchased goods shall continue in the form of the transformed object. Insofar as the purchased goods are processed with other objects not belonging to us, we acquire co-ownership of the new item in proportion to the objective value of our purchased goods to the other processed items at the time of processing. The same applies to the case of mixing. Insofar as the mixing is done in such a way that the object of the customer is regarded as the main item, it is hereby deemed as agreed that the customer shall transfer proportionate co-ownership to us and reserve the sole ownership or co-ownership that hereby arises for us. In order to secure our claims against the customer, the customer as of now already also assigns to us such claims that will arise for him against a third party, with regard to the combination of the reserved goods with a property; we as of now already accept this assignment.
(5) We undertake to release the securities to which we are entitled at the request of the customer, insofar as their value exceeds the secured claims by more than 20%.
§ 7 Warranty and complaints as well as recourse / manufacturer redress
(1) Warranty rights of the customer presuppose that the latter has properly fulfilled his inspection and complaint obligation pursuant to § 377 German Commercial Code (HGB).
(2) The statute of limitations for warranty claims is 12 months from the date of the effected delivery of the goods by us to our customer.
(3) If, despite all due care, the delivered goods have a defect that already existed at the time of the transfer of risk, we will subject to timely notice of the defect, at our option repair the goods or ship a replacement. We always have to be given the opportunity for rectification within a reasonable deadline. Rights of recourse shall without limitation remain unaffected by the above regulation.
(4) Claims for defects do not apply in cases of insignificant deviations from the agreed quality, in cases of only minor impairment of usefulness, of natural wear and tear and damage, which arise following the transfer of risk, due to faulty or negligent handling, excessive strain, and unsuitable equipment.
(5) Claims of the customer for the purpose of expenses associated with subsequent performance, in particular transport, travel, labour and material costs, shall be excluded if the expenses arise because the goods delivered by us were subsequently transferred to another location other than the registered office of the customer, unless the transfer is in accordance with their intended use.
(6) Claims of recourse by the customer against us are insofar only limited to cases, in which the customer has not concluded any agreements with his buyer that go beyond the mandatory statutory warranty claims. Paragraph 6 shall accordingly moreover also apply with regard to the scope of the right of recourse of the customer against the supplier.
§ 8 Other
(1) This contract and the legal relations of the parties are subject to the laws of the Federal Republic of Germany under exclusion of the UN Sales Convention (CISG).
(2) Place of performance and exclusive place of jurisdiction for all disputes arising from this contract is our registered office, unless stated otherwise in the order confirmation.
(3) All agreements made between the parties for the purpose of performing this contract are set forth in writing in this contract.
(4) In the event that individual provisions of this contract are or become invalid or entail a gap, the other provisions shall thereby remain unaffected. The parties undertake to replace the invalid provision with a legally valid provision which comes closest to the economic purpose of the ineffective provision, or else fills this gap.