GENERAL TERMS AND CONDITIONS OF BUSINESS
1. GENERAL, SCOPE OF APPLICATION
1.1 The following general terms and conditions apply to all present and future business relationships between Magnesia GmbH and its customers, including consultancy services, unless otherwise agreed.
1.2 Any deviating, conflicting or supplementary general terms and conditions of business provided by the buyer, even if known about, will not become part of the contract unless their applicability is expressly agreed in writing. The customer shall accept our general terms and conditions of business, at the latest, upon acceptance of the first delivery or consultancy service. If individual provisions of these general terms and conditions of business or other agreements reached with the customer are or become invalid, the validity of the remaining provisions will remain unaffected; the invalid clause will be replaced by a provision that comes as close as possible to the commercial objectives of the contracting parties.
1.3 These terms and conditions only apply to natural or legal persons or partnerships with legal personality who are exercising a commercial activity or a self-employment activity (businesses) as well as to legal persons under public law and special funds under public law.
2. QUOTE, SIGNING OF CONTRACT
2.1 All parts of any quotes made by Magnesia GmbH without a deadline are subject to change and are non-binding, unless expressly agreed otherwise. They represent an invitation to the buyer to submit a proposal for the conclusion of a contract.
2.2 Contracts are concluded by our written confirmation, sent in text form or using telecommunications, or by performance of the order.
2.3 Verbal agreements and agreements made by telephone that are not reached with one of our managing directors or authorised signatories are only binding for us if they are confirmed in writing or in text form. The powers of our employees are limited in this respect.
3. PRICES AND SHIPPING
3.1 Unless otherwise agreed, our prices including packaging apply ex works for the territory of the Federal Republic of Germany. The net delivery weight is used to calculate the price.
3.2 At the buyer’s request, we can send the goods to a location specified by the buyer. The buyer shall pay for the shipping costs.
3.3 If, after the conclusion of the contract, there are cost reductions or increases due to changes in raw material prices or freight tariffs, we retain the right to adjust our prices in line with the proportion of the total price affected. In such cases, the customer will be informed immediately, no later than 14 days before delivery. We shall provide evidence of additional costs to the buyer upon request. If prices have increased by more than 5% compared to the date the contract was concluded, the buyer is entitled to withdraw the order within 7 days of being notified of the price increase.
3.4 The delivery will be made in standard packaging at our discretion. The return of transport packaging and all other packaging not subject to German packaging system participation in accordance with the German Packaging Act of 05/07/2017 (Federal Law Gazette I p. 2234) will not be accepted, with the exception of pallets. The buyer will be responsible, at its own cost, for sending the packaging for recycling or recovery on our behalf. Normal pallets remain our property and must be returned immediately, or will be charged at cost price.
4. DELIVERY TIME, SCOPE OF DELIVERY
4.1 If delivery periods are not expressly agreed to be binding, the stated delivery periods should be understood only as an anticipated delivery date and are not binding. Fixed delivery dates require our express written confirmation to be binding.
4.2 We are entitled to make partial deliveries and provide partial services at any time.
5. FORCE MAJEURE
5.1 Cases of force majeure, in particular pandemics, strikes, lockouts, wars, raw material and energy shortages, operational and traffic disruptions that we are not responsible for, and obstructive sovereign decrees will suspend the contractual obligations of the parties for the duration of the disruption and to the extent of their effect, insofar as they make the performance of the affected business uneconomical for the foreseeable future. This also applies if one of the above cases of force majeure occurs at our suppliers and no other delivery option exists or one only exists under unreasonable conditions.
5.2 If the resulting delays exceed six weeks, both contracting parties will be entitled to withdraw from the contract in relation to the affected scope of services.
5.3 The customer will not be entitled to claim for damages in the event of force majeure.
6. QUALITY DATA
6.1 Data on the percentage content or mixing ratios of our goods should be considered approximate average values. Samples submitted, with the exception of pharmacopoeial goods, should be considered to be approximate type samples. Deviations, which are unavoidable despite the careful manufacture of the goods and the determination of the values, are expressly reserved. Such deviations do not constitute a material defect and do not entitle the customer to compensation. Insofar as we make statements about our products (including in the form of product specifications, product requirements or comparable statements), these are only descriptive in nature and serve only as information for the customer. They do not represent a promise of a particular product characteristic, product quality or usability, nor do they constitute a written guarantee. The customer cannot base any claims against us on such statements.
6.2 We give technical use advice to the best of our knowledge based on the state of our experience and knowledge. However, all data and information on the suitability and use of our goods are non-binding and do not mean that the buyer does not have to carry out their own tests and trials.
6.3 We do not provide any guarantee of the usability of the products for special purposes or target markets of the customer. In this respect, we are under no obligation to provide advice and information. The buyer is responsible for compliance with statutory and official regulations during the storage, further transport, use and further marketing of our goods in accordance with the applicable legal provisions.
7. PLACE OF PERFORMANCE
The place of performance for all rights and obligations arising from the contractual relationship is Lüneburg.
8. TRANSFER OF RISK
8.1 If the purchased goods are shipped from the place of performance of MAGNESIA GmbH to another location at the request of the buyer, the risk will – unless otherwise agreed – be transferred to the buyer as soon as the goods have been delivered to the forwarding agent, carrier or other person or organisation otherwise designated to make the shipment.
8.2 The buyer must notify the transport company immediately of any complaints relating to transport damage, at the latest within the specific deadlines provided for this purpose, and have them confirmed in writing.
8.3 Transport insurance will only be taken out at the request of the buyer and at its cost. The quantities, weight and number of units recorded at the departure point are definitive.
9.1 The buyer must inspect the delivered goods – also by sample testing if reasonable – immediately upon receipt for defects, incorrect delivery, and deviations in quantity.
9.2 Complaints must be made in writing within 10 days of receipt of the goods or, in the case of hidden defects, within 8 days of their discovery in accordance with the provisions of German commercial law (§ 377 German Commercial Code (HGB)).
9.3 The warranty period is 1 year from delivery or dispatch.
9.4 In the event of warranty claims, we will, at our discretion, first deliver any missing quantities, supply replacements, or repair defects. If repair or replacement is not possible or ultimately fails or is unreasonably delayed, the buyer may demand a price reduction. The buyer may demand the cancellation of the contract if the contracting parties cannot reach an agreement on the reduction.
All contractual claims or claims with other legal bases for damages made by the customer, including compensation for consequential damages and costs of returns and recalls, are excluded to the extent permitted by law, unless we have acted intentionally or with gross negligence. This disclaimer applies accordingly to the personal liability of our legal representatives, employees and any vicarious agents.
11. TERMS OF PAYMENT
11.1 Unless otherwise agreed, payment shall be made immediately and without deduction upon receipt of the invoice.
11.2 An agreed discount can only be granted if all older due invoices have been settled and the buyer settles the outstanding invoice amount in full.
11.3 The buyer will be in default according to § 286 para. 3 of the German Civil Code (BGB) at the latest if it does not make payment within 30 days of the invoice due date and receipt or an equivalent payment schedule.
11.4 If the buyer is in default, interest on arrears will be charged at a rate of 9 percentage points above the base interest rate p.a. We reserve the right to assert claims for further or additional damages.
11.5 Offsetting and rights of lien can only be exercised by the buyer if its counterclaims have been legally established or are undisputed.
12. RETENTION OF TITLE
12.1 The supplied goods remain the property of MAGNESIA GmbH until full payment of all our receivables due from the buyer.
12.2 The buyer may only make use of our retained goods in the ordinary course of business provided it meets its obligations from the commercial relationship with us in good time.
12.3 If our goods are processed, we will be considered the manufacturer and the processing will be carried out on our behalf. We acquire ownership of the newly created goods or co-ownership in proportion to the invoice value of our goods to the other materials used, while the buyer’s reversionary interest in our goods continues in the new item. This will also apply in the event of combination and mixing.
12.4 The buyer is obliged to inform us immediately of any access by third parties to the delivered goods under retention of title and to provide the information and documents required for us to assert our rights.
12.5 All receivables due to the buyer from its customers accrued or still accruing as a result of sales or further processing or other legal claims that result in a loss of ownership on our part shall be assigned to us by the buyer in proportion to our ownership share in the sold or further processed goods as a security when the order is placed and until the full payment of all receivables from the business relationship with all ancillary rights. In such cases, the buyer will receive the purchase price as a trustee only and is obliged to transfer it to us immediately on receipt and to keep it separate from its assets as trustee for us until then. The same applies to receivables from insurance contracts. The buyer is obliged to inform us immediately of access by third parties to the receivables assigned to us.
12.6 The buyer is entitled to demand release of the securities provided that their realisable value exceeds the value of the receivables being secured by 20%. The buyer will be entitled to collect the receivables as long as it has duly fulfilled its obligations towards MAGNESIA GmbH. On request, the buyer is obliged to provide the addresses of its customers and the value of the receivables along with copies of the invoices.
12.7 If payment is no longer made by the buyer in accordance with the contract, we may, without prejudice to our other rights, withdraw from the contract and demand the return of the sold item.
12.8 The buyer confirms that it has not yet otherwise disposed of the aforementioned assigned to us.
13. JURISDICTION, APPLICABLE LAW
13.1 For all legal disputes arising from the contractual relationship, the place of jurisdiction shall be determined by our registered office in Lüneburg if the buyer is a merchant, a legal person under public law or a special fund under public law. Otherwise, the places of jurisdiction according to the German Civil Processing Ordinance (ZPO) shall apply.
13.2 The law of the Federal Republic of Germany applies to the exclusion of the UNCITRAL or United Nations Convention on Contracts for the International Sale of Goods. Insofar as commercial terms are used in contracts or sales confirmations, they will apply as defined by the International Chamber of Commerce’s (ICC) Incoterms in the version applicable at the time the contract was concluded.
14. DATA PROTECTION
The buyer acknowledges that data acquired and required within the context of the commercial relationship will be processed and used by us in accordance with General Data Protection Regulation (EU)2016/679 and the Federal Data Protection Act.
Lüneburg, May 2021