General Terms and Conditions of Mag Mo GmbH
§ 1 Scope of application
1. All orders placed with Mag Mo GmbH, Alberichstr. 39, 53179 Bonn, shall be subject exclusively to these Terms and Conditions of Sale. Deviating or conflicting terms and conditions shall not be recognised by us unless we have expressly agreed to them in writing.
2. These terms and conditions of sale shall also apply to all future transactions between the parties and also if we carry out the delivery of the goods in the knowledge of deviating or conflicting terms and conditions.
3. These Terms and Conditions of Sale shall only apply to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB).
§ 2 Conclusion of the contract
1. If the order constitutes an offer within the meaning of § 145 BGB (German Civil Code), we are entitled to accept it within a period of two weeks. A contract is only concluded when we have confirmed the order in writing, by fax or e-mail or the ordered goods are delivered within the deadline.
2. If an order confirmation contains changes, extensions, restrictions or other deviations from the order that are customary in the industry, the buyer shall be deemed to have given his consent if he does not object in writing, by fax or e-mail immediately after receipt of the confirmation. Changes made by the buyer to our confirmations require - in order to become part of the contract - our renewed confirmation in writing, by fax or e-mail.
3. Offers in brochures, advertisements and price lists concerning weight, dimensions, filling and price are subject to change and only become binding if they are stated in the delivery note or if express reference is made to them here. Weight losses due to natural shrinkage, storage and the like cannot be ruled out and are not at our expense. We reserve the right to make technical changes as well as changes in colour and form within the scope of what is reasonable.
4. The conclusion of the contract is subject to correct and timely delivery by our suppliers. This shall only apply in the event that the non-delivery is caused by an obstacle for which we are not responsible, in particular in the event of the conclusion of a congruent hedging transaction with our supplier companies. The buyer shall be informed immediately of the non-availability of the service. The consideration, if already provided, will be refunded without delay.
5. We reserve the right to withdraw from contracts if:
a) harvest failures occur after conclusion of the contract due to force majeure or unfavourable weather conditions, or one of our suppliers loses its ability to deliver despite an existing delivery contract for reasons beyond our control,
b) the contractual goods are not certified as organic goods within the meaning of the EC Organic Regulation by the respective supervising cultivation association due to the fault of the producer. A change of the certification provided for in the contract is permissible,
c) a third country product is no longer recognised as organic within the meaning of the EC Organic Regulation due to an amendment of the EC Organic Regulation at the time of import into the EC,
d) doubts about the necessary liquidity of the buyer arise for us after conclusion of the contract and he is unable or unwilling to dispel these doubts at our request by providing suitable evidence,
e) the buyer does not comply with agreed delivery or acceptance dates or payment dates.
§ 3 Prices, payment
1. Our prices are net prices and are ex works (Incoterms 2010) in Germany, plus the respective statutory VAT and customs duties and other charges and excluding the costs of packaging, unless expressly agreed otherwise in writing. In the case of a mail order purchase, the purchase price shall be understood to be exclusive of the transport costs (see § 4 para. 8).
2. The purchase price shall be due for payment in advance, without deduction, after invoicing, unless expressly agreed otherwise in writing. After the due date, interest on arrears shall be charged at a rate of 9% p.a. above the respective base interest rate. We reserve the right to assert further damage caused by default.
3. If there is a period of more than six weeks between the conclusion of the contract and the delivery of the goods by the seller and if cost changes occur during this period, in particular price increases by upstream suppliers or exchange rate fluctuations, the seller reserves the right to adjust the price accordingly. The seller will inform the buyer of the reasons for the price adjustment upon request.
4. The buyer is only entitled to set-off in so far as his counterclaims are undisputed or have been legally established or recognised by us. The buyer is only entitled to assert rights of retention on the basis of counter claims from the same contractual relationship.
5. We have the right to assign our claims against the buyer to third parties. If the buyer is in default of payment of a claim, then all other claims against the buyer can be made due. (5) If payment is delayed, we are entitled to exclude the buyer from further deliveries, even if they have already been confirmed, and to assert a corresponding right of retention.
6. We are not obliged to accept bills of exchange or cheques. However, if we accept bills of exchange in individual cases, any discount and collection charges shall be borne by the buyer.
§ 4 Delivery, warranty, transfer of risk
1. We deliver ex works (Incoterms 2010) ex warehouse in Germany, excluding packaging, unless otherwise agreed in the order confirmation. Transport is at the expense and risk of the buyer. The packaging shall be suitable for the intended purpose. We fulfill special packaging requests against payment. Upon request, we insure the goods on behalf and at the expense of the buyer.
2. With regard to the delivery quantity, we reserve the right to make excess or short deliveries to a maximum extent of 5 % and to agree on packaging units as well as partial deliveries.
3. We shall only communicate delivery times after clarification of all commercial and technical details of an order. Unless expressly agreed otherwise in writing, our information on delivery times is approximate and subject to change.
4. If we inform the purchaser in writing immediately after obtaining our own knowledge, but at the latest within 4 weeks of receipt of the order, that the goods cannot be procured in the longer term, the purchaser shall be entitled to withdraw from the contract within a further 4 weeks of receipt of the notification. The declaration of withdrawal must be made in writing.
5. Delivery presupposes the timely and proper fulfillment of the buyer's obligations. The defense of non-performance of the contract remains reserved.
6. In the event of default in acceptance or other culpable breach of cooperation obligations on the part of the buyer, we shall be entitled to compensation for the resulting damage, including any additional expenses. We reserve the right to assert further claims. In this case, the risk of accidental loss or accidental deterioration of the goods shall pass to the buyer at the time of the default in acceptance or other breach of duties to cooperate. Translated with www.DeepL.com/Translator (free version)
7. Force majeure and other events occurring after the conclusion of the contract for which we are not responsible and which make delivery significantly more difficult, delayed or impossible (such as natural disasters, armed conflicts, strikes, lawful lockouts, official measures) shall release us from our obligations under the respective contract for the duration of the event and the hindrance.
8. The dispatch takes place exclusively on calculation and danger of the buyer. The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer upon handover, in the case of sale by delivery to a place other than the place of performance, upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment.
9. If the purchaser does not indicate a special shipping request, we shall ship the goods according to the shipping route we deem suitable at the risk and expense of the purchaser.
10. If we are in default, our liability for damages in the event of slight negligence shall be limited to an amount of 30% of the foreseeable damage. Further claims for damages shall only exist if the delay is due to intent or gross negligence.
11. The buyer has to check the delivered goods immediately after receipt for transport damages, obvious defects and warranted properties. Any transport damage found must be reported immediately and the goods must be sent to us with a declaration of acknowledgement from the forwarding agent, post office, railroad or other parcel service as well as a declaration of assignment from the contractor. (The insurance conditions of the forwarding agents require this.) After this, a replacement delivery can be made by us, as far as the prerequisites of a claim of the transport company are given and the buyer has handed over all documents and information necessary for this.
The purchaser shall notify us in writing of any other obvious defects in the goods without delay, but within eight days at the latest. The purchaser shall bear the full burden of proof for all claim prerequisites, in particular for the defect itself, for the time of discovery of the defect and for the timeliness of the notice of defect. Our warranty does not extend to damage caused to the buyer by improper handling, natural shrinkage, humidity, strong heating of the rooms, other unusual weather and temperature influences as well as insect and beetle infestation.
We shall not be liable for indirect or direct damages, unless these are due to gross negligence or intentional actions for which we are responsible, or in the event of a culpable breach of material contractual obligations.
Substantial contractual obligations are those obligations which protect the legal positions of the buyer which are substantial to the contract and which the contract is intended to grant to the buyer in accordance with its content and purpose; substantial contractual obligations are also those contractual obligations which enable the fulfillment of the contract in the first place and on whose adherence the buyer has regularly relied and may rely. If we are liable pursuant to the preceding sentence for the breach of a substantial contractual obligation without intent or gross negligence, the liability shall be limited to the typically foreseeable damage. The above limitations or exclusions of liability shall not apply in the event of culpable injury to life, limb or health, to liability claims under the Product Liability Act or in the event of a contractually agreed guarantee, the contractual assumption of a procurement risk or if the relevant circumstance giving rise to liability was fraudulently concealed. Insofar as our liability is limited or excluded on the basis of the aforementioned provisions, the same shall also apply to our employees as well as vicarious agents and assistants.
12. Claims for damages in tort, irrespective of the legal grounds, shall be excluded against us as well as against our employees and their persons whom we use for the delivery of the goods, except in cases of intent or gross negligence.
13. Claims for defects shall become time-barred after one year in commercial transactions; claims against end consumers shall become time-barred after two years.
14. The buyer does not receive any guarantees in the legal sense from us. Manufacturer's guarantees remain unaffected by this.
15. The Buyer shall bear all fees, costs and expenses incurred in connection with any legal action taken against him outside Germany.
16. The agreed quality of our goods (within the meaning of Section 434 (1) sentence 1 of the German Civil Code) shall only be the quality set out in the respective specification in our order confirmation. We shall not assume any warranty beyond this.
17. The prerequisite for any warranty rights of the purchaser is the purchaser's proper fulfillment of all inspection and complaint obligations owed pursuant to § 377 of the German Commercial Code (HGB). A specific analysis by an independent laboratory accredited in the Federal Republic of Germany shall be deemed to be an examination customary in the industry.
18. Warranty claims can be asserted within 12 months after the transfer of risk.
19. Defects in the goods shall initially be warranted at our discretion either by repair or replacement.
20. In the event of remedying the defect, we shall be obliged to bear all expenses necessary for the purpose of remedying the defect, in particular transport, travel, labor and material costs.
§ 5 Retention of title
1. The delivered goods remain our property until full payment - in case of payment by check or bill of exchange until encashment. If the retention of title expires due to resale, mixing, combination or processing, the new item or the claim arising therefrom shall take the place of the delivered goods (extended retention of title). The delivered goods do not serve to maintain the business operations of a buyer. In any case, the delivered goods shall remain our property until all claims arising from the current account or business relationship have been paid in full. In the event of conduct contrary to the terms of the contract by the buyer- in particular in the event of default in payment - we shall be entitled to take back the goods subject to retention of title at the buyer's expense. The buyer is entitled to resell the goods subject to retention of title in the ordinary course of business. In this case, however, he hereby assigns to us all claims arising from such resale, irrespective of whether such resale takes place before or after any processing of the goods delivered under retention of title. Notwithstanding our authority to collect the claim ourselves, the buyer shall remain authorized to collect the claim even after the assignment. In this context, we undertake not to collect the claim as long as and insofar as the buyer meets his payment obligations, no application for the opening of insolvency or similar proceedings has been filed and there is no cessation of payments.
2. If the purchase price has not been paid in full, the buyer must inform us immediately in writing if the goods are encumbered with the rights of third parties or exposed to other interventions by third parties.
3. The buyer is entitled to treat or process the goods subject to retention of title in the ordinary course of business. In this case, however, the treatment or processing shall be carried out on our behalf. In cases where the goods are combined or mixed (§§ 947, 948 BGB), we shall acquire co-ownership of any new items that may be created in proportion to the value of our goods to the goods otherwise processed or treated at the time of processing or treatment. The buyer shall be entitled to the added value resulting from the treatment or processing.
4. As far as the above-mentioned securities exceed the claims to be secured by more than 10 %, we shall be obliged to release the securities at our discretion at the request of the purchaser.
5. The buyer is obliged to inform us immediately of any access to the goods by third parties, for example in the event of a seizure, as well as any damage to or destruction of the goods. Furthermore, in the event of seizure of the goods subject to retention of title or of claims assigned to us by third parties, the buyer undertakes to immediately inform the seizing party and the enforcement bodies involved, both verbally and in writing, of our rights (retention of title) and also to do everything else to safeguard our rights. The buyer must also notify us immediately of any change in ownership of the goods and of his own change of residence or location, insofar as retention of title still exists. Upon request, the buyer shall at any time prove where the goods subject to retention of title are located.
§ 6 Liability
1. In the event of intent or gross negligence on our part or on the part of our representatives or vicarious agents, we shall be liable in accordance with the statutory provisions; the same shall apply in the event of culpable breach of essential contractual obligations. Insofar as there is no intentional breach of contract, our liability for damages shall be limited to the foreseeable damage typically arising from the intended use of our goods.
2. The liability for culpable injury to life, limb or health and liability under the Product Liability Act shall remain unaffected.
3. Unless otherwise expressly stipulated above, our liability is excluded.
§ 7 Final provisions
1. This contract shall be governed by the laws of the Federal Republic of Germany (excluding the UN Convention on Contracts for the International Sale of Goods).
2. The place of performance as well as the exclusive place of jurisdiction for all disputes arising from or in connection with this contract shall be the registered office of our company. The same shall apply if the buyer does not have a general place of jurisdiction in Germany or if the buyer's place of residence or habitual abode is unknown at the time the action is filed.
3. The invalidity of individual provisions of this contract shall not affect the validity of the remaining provisions. In place of the invalid provision, a provision shall apply which corresponds to the concurring will of the parties. Sentences 1 and 2 shall apply accordingly to any loopholes in this contract.