General Terms and Conditions of Dichtungstechnik GmbH | MagnuSeals

(As of: 01.03.2022)

 

I. General Information

1. The business relationship between Dichtungstechnik GmbH | MagnuSeals and the customer shall be governed exclusively by the following General Terms and Conditions in the version valid at the time of the order. The General Terms and Conditions and the offer of Dichtungstechnik GmbH | MagnuSeals are directed exclusively at entrepreneurs within the meaning of § 14 BGB (German Civil Code).

2. The offers, order confirmations, deliveries, and services of Dichtungstechnik GmbH | MagnuSeals are provided exclusively on the basis of these terms and conditions.

3. The General Terms and Conditions also apply to all future business relationships, even if they are not expressly agreed again.

4. Counter-confirmations by the customer with reference to its terms and conditions of business or purchase are hereby expressly rejected. The customer's general terms and conditions shall not apply.

5. Deviations from these terms and conditions are only effective if agreed in writing.

II. Offer and conclusion of contract

1. The offers made by Dichtungstechnik GmbH | MagnuSeals are subject to change; order numbers or item numbers refer to the latest edition of the documents issued by Dichtungstechnik GmbH | MagnuSeals, such as catalogs or brochures, which also contain further technical information. These documents are only approximate unless they are expressly designated as binding. No guarantee can be given for exact compliance with the unit weights specified in the catalog.
2. Declarations of acceptance and all orders require written or electronic (including EDI, remote data transmission, and machine-readable data carriers) confirmation from Dichtungstechnik GmbH | MagnuSeals to be legally valid. This applies accordingly to additions, amendments, or subsidiary agreements. The invoice shall be deemed to be the order confirmation.
3. Drawings, illustrations, dimensions, weights, or other performance data are only binding if expressly agreed in writing. All drawings and documents must be returned to Dichtungstechnik GmbH | MagnuSeals upon request or, if the order is not placed, without being asked.
4. If, after conclusion of the contract, it becomes apparent that Dichtungstechnik GmbH | MagnuSeals' claim to consideration is at risk due to the customer's inability to pay, in particular due to the customer exceeding their credit limit or having outstanding, overdue invoices, Dichtungstechnik GmbH | MagnuSeals shall be entitled to refuse to perform the contract until the customer has provided the consideration or provided security for it. Dichtungstechnik GmbH | MagnuSeals shall be entitled to withdraw from the contract if it has unsuccessfully set the customer a reasonable deadline for providing the consideration or providing security.

III. Prices and terms of payment

1. The prices quoted by Dichtungstechnik GmbH | MagnuSeals in its offers are subject to change. Unless otherwise stated in the order confirmation, prices are ex works/warehouse of Dichtungstechnik GmbH | MagnuSeals and exclude packaging, postage, freight, other shipping costs, insurance, and customs duties; these will be invoiced separately. Packaging will be charged at cost price. Statutory value added tax is not included in the prices quoted by Dichtungstechnik GmbH | MagnuSeals. It will be invoiced separately at the statutory rate.
2. All invoices issued by Dichtungstechnik GmbH | MagnuSeals are payable in euros 30 days after the invoice date, net and without any deductions, to the paying agent of Dichtungstechnik GmbH | MagnuSeals. No cash discount may be deducted if purchase price claims from older, due invoices remain unpaid. Any cash discounts are to be deducted from the gross invoice amount.
3. A payment shall only be deemed to have been made when Dichtungstechnik GmbH | MagnuSeals has access to the amount.
4. If the customer defaults on their payment obligations, or if Dichtungstechnik GmbH | MagnuSeals becomes aware of other circumstances that call into question the customer's creditworthiness, Dichtungstechnik GmbH | MagnuSeals shall be entitled to demand payment of the entire remaining debt or to demand other security.
   
   

IV. Offsetting, right of retention, prohibition of assignment

1. The customer is only entitled to offset and retain payments in respect of claims that are undisputed or have been legally established. The reduction due to complaints about defects is subject to the same restrictions.
2. The customer agrees to the offsetting of its claims and liabilities against Dichtungstechnik GmbH | MagnuSeals and its group companies. Claims and liabilities of the customer's group companies may also be offset in the same manner.
3. The customer's rights under the contract are not transferable.

V. Delivery and performance time; force majeure

1. Agreed delivery periods begin on the day on which the customer's order is received. Compliance with the delivery obligation of Dichtungstechnik GmbH | MagnuSeals requires the lawful and proper fulfillment of the purchaser's obligations; in particular, Dichtungstechnik GmbH | MagnuSeals must have received all documents, parts, information, and approvals to be provided by the purchaser, and any agreed advance payments must have been made.
2. The date of delivery is the date on which the customer is notified that the goods are ready for collection. If shipping is required, the date of delivery is the date on which the goods are handed over to the carrier.
3. Reasonable partial deliveries and partial services are permissible to a reasonable extent. Furthermore, unavoidable quantity deviations of up to +/- 5 to 10% are not considered to be insufficient quantities.
4. If Dichtungstechnik GmbH | MagnuSeals is in default of delivery on the agreed delivery date, the customer may withdraw from the contract if it has set Dichtungstechnik GmbH | MagnuSeals a reasonable grace period of at least 14 days, unless, in exceptional cases, the setting of a deadline is dispensable. If the customer does not declare within the grace period whether they insist on performance or wish to exercise their right of withdrawal, and if such a declaration is not received by Dichtungstechnik GmbH | MagnuSeals within a further period of 7 days, Dichtungstechnik GmbH | MagnuSeals shall be entitled to withdraw from the contract. The customer's right to claim damages is governed by the conditions set out in Section IX.
5. Force majeure" means the occurrence of an event or circumstance that prevents or impairs Dichtungstechnik GmbH | MagnuSeals from fulfilling one or more of its contractual obligations. Force majeure includes, in particular, the following cases: war, invasion, hostile acts of war, significant military mobilization, civil war, insurrection, rebellion, and revolution, seizure of power by the military or usurpers, riots, terrorist acts, sabotage, or piracy, currency and trade restrictions, embargoes, sanctions, lawful or unlawful sovereign acts, compliance with laws or government orders, expropriation, seizure of works, nationalization, epidemics, epidemic, pandemic, natural disaster or extreme natural event, explosion, fire, destruction of equipment, prolonged failure of transportation, telecommunications, information systems or energy, general labor unrest such as boycott, strike and lockout, slowdown, occupation of factories and buildings.
6. In the event of force majeure, Dichtungstechnik GmbH | MagnuSeals shall be released from its obligation to fulfill its contractual obligations and from any liability for damages or any other contractual remedy for breach of contract from the time at which the obstacle causes the inability to perform and Dichtungstechnik GmbH | MagnuSeals invokes this. Dichtungstechnik GmbH | MagnuSeals shall notify the other party of the obstacle and its inability to perform within a reasonable period of time. If the effect of the asserted obstacle or event is temporary, the above consequences shall only apply for as long as the asserted obstacle hinders performance.
7. If the duration of the claimed impediment due to force majeure results in the contracting parties being essentially denied what they could reasonably expect under the contract, each party shall have the right to terminate the contract by notifying the other party within a reasonable period of time.

VI. Hazards Transition

1. The risk shall pass to the customer as soon as the goods of Dichtungstechnik GmbH | MagnuSeals, an external warehouse or, in the case of direct delivery of goods not manufactured by Dichtungstechnik GmbH | MagnuSeals, the warehouse of the subcontractor have left the warehouse. If shipment or collection is delayed or becomes impossible through no fault of Dichtungstechnik GmbH | MagnuSeals, the risk shall pass to the customer upon notification of readiness for shipment.
2. Delivered items must be accepted by the buyer, even if they have minor defects, without prejudice to the rights set out in Section VIII.

VII. Retention of title

1. The delivered goods remain the property of Dichtungstechnik GmbH | MagnuSeals until the customer has settled all liabilities arising from the existing business relationship. Processing and transformation are always carried out for Dichtungstechnik GmbH | MagnuSeals as the manufacturer, but without any obligation on its part. If the seller's co-ownership expires due to mixing, it is hereby agreed that the customer's co-ownership of the uniform item shall be transferred to Dichtungstechnik GmbH | MagnuSeals in proportion to the invoice value. The customer shall store the seller's property or co-ownership free of charge.
2. The customer undertakes to protect the property/co-ownership of Dichtungstechnik GmbH | MagnuSeals with the diligence of a prudent businessman against spoilage, deterioration, or loss, including vis-à-vis its buyers.
3. The customer is entitled to process and sell the goods subject to retention of title in the ordinary course of business. Pledging or transfer by way of security is not permitted. The customer hereby assigns to Dichtungstechnik GmbH | MagnuSeals, by way of security, all claims arising from the resale or any other legal basis relating to the goods subject to retention of title, in full and with all ancillary rights.
4. In the event of access by third parties to the goods subject to retention of title, the customer shall indicate the ownership of Dichtungstechnik GmbH | MagnuSeals and notify them immediately. Costs and damages shall be borne by the customer.
5. In the event of default of payment by the customer, Dichtungstechnik GmbH | MagnuSeals shall be entitled, after setting a reasonable deadline, to withdraw from the contract and take back the goods subject to retention of title at the customer's expense or, if necessary, to demand assignment of the customer's claims for surrender against third parties. Dichtungstechnik GmbH | MagnuSeals' right to claim damages remains unaffected. The same applies in the event of other breach of contract by the customer.
6. Dichtungstechnik GmbH | MagnuSeals undertakes to release the securities to which it is entitled at the customer's request insofar as the realizable value of its securities exceeds the claims to be secured by more than 20%. The selection of the securities to be released is at its discretion.

VIII. Claims for defects

1. The exclusion of deviations customary in the industry requires express written agreement. The same applies to guarantees. The information provided by Dichtungstechnik GmbH | MagnuSeals regarding the delivery and service items in its catalogs, brochures, and price lists are merely descriptions, labels, or guidelines, unless otherwise specified in the order confirmation. Minor, insignificant deviations from the catalogs or previously delivered goods are not considered defects.
2. The customer must check for themselves whether the goods ordered from Dichtungstechnik GmbH | MagnuSeals are suitable for their intended use. Goods that are not suitable only constitute a defect if Dichtungstechnik GmbH | MagnuSeals has confirmed their suitability to the customer in writing.
3. The wear and tear of parts subject to normal wear and tear during normal use does not constitute a defect.
4. If the assembly, installation, distribution, or maintenance instructions of Dichtungstechnik GmbH | MagnuSeals are not followed, changes are made to the products, parts are replaced, or consumables are used that do not meet the original specifications, claims for defects shall only be valid if the customer can prove that the defect was not caused by this, but already existed at the time of transfer of risk. Dichtungstechnik GmbH | MagnuSeals is liable for ensuring that its products are free from manufacturing and material defects and otherwise have the quality agreed in the order confirmation. Claims by the customer for defects presuppose that the customer has duly fulfilled its obligations to inspect and give notice of defects in accordance with § 377 HGB (German Commercial Code). Notices of defects must be made in writing to be effective.
5. If the goods have not yet been delivered to an end user, justified and properly reported defects oblige Dichtungstechnik GmbH | MagnuSeals, at its discretion, to remedy the defects by repair or to deliver the delivery item or parts thereof again. If subsequent deliveries or repairs fail, the customer may only demand a reduction in payment or, at its discretion, withdraw from the contract. However, the right of withdrawal and a claim for damages in lieu of performance shall only exist if the defect is not insignificant. The customer's right to claim damages is governed by Section IX.
6. If the goods have already been delivered to an end user, the customer is generally only entitled to assert those claims for defects against Dichtungstechnik GmbH | MagnuSeals that his customer has asserted against him. This does not apply if the goods were taken back on the basis of goodwill arrangements not agreed with Dichtungstechnik GmbH | MagnuSeals. Furthermore, the customer is not entitled to withdraw from the contract with Dichtungstechnik GmbH | MagnuSeals if they had to take back the goods because they did not properly fulfill their obligation to provide subsequent performance, in particular because they culpably allowed a deadline set for subsequent performance to pass without result. Dichtungstechnik GmbH | MagnuSeals is only obliged to reimburse expenses in accordance with Section 439 (2) of the German Civil Code (BGB) if the customer has previously informed it in writing without delay of its buyer's request for subsequent performance, informed it of the intended type of subsequent performance and the approximate costs associated with it, and Dichtungstechnik GmbH | MagnuSeals has not immediately objected. The customer is obliged to follow the suggestions of Dichtungstechnik GmbH | MagnuSeals concerning a more favorable variant of subsequent performance.
7. If Dichtungstechnik GmbH | MagnuSeals violates non-performance-related obligations pursuant to Section 241 (2) of the German Civil Code (BGB), the customer shall only be entitled to a right of withdrawal and a claim for damages in lieu of performance beyond the statutory requirements if he has previously issued a written warning to Dichtungstechnik GmbH | MagnuSeals and the breach of duty has nevertheless not been remedied.
8. In the event of rectification of defects, Dichtungstechnik GmbH | MagnuSeals shall be obliged to bear all expenses necessary for the purpose of rectifying the defects, in particular transport, travel, labor, and material costs, unless and to the extent that these are based on the fact that the purchased item has been taken to a location other than the place of performance.
9. Claims for defects shall become time-barred within 12 months of delivery of the item to the customer. This shall not apply if the breach of duty was caused intentionally or through negligence. Otherwise, Sections 444 and 479 of the German Civil Code (BGB) shall remain unaffected.

IX. Compensation, limitation of liability

1. Claims for damages by the customer are excluded. This does not apply to claims for damages by the customer arising from injury to life, limb, or health, or liability for other damages based on intentional or grossly negligent breach of duty by Dichtungstechnik GmbH | MagnuSeals, its legal representatives, or vicarious agents. Furthermore, liability for the breach of obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the customer may regularly rely remains unaffected. In the event of a slightly negligent breach of these contractual obligations, Dichtungstechnik GmbH | MagnuSeals shall only be liable for foreseeable damage typical for this type of contract, unless the customer's claims for damages arise from injury to life, limb, or health.
2. Paragraph 1 also applies in favor of the legal representatives and vicarious agents of Dichtungstechnik GmbH | MagnuSeals if claims are asserted directly against them.
3. The provisions of the Product Liability Act, the Federal Data Protection Act, and the GDPR remain unaffected.

X. Right of use and exploitation, property rights

1. Insofar as Dichtungstechnik GmbH | MagnuSeals manufactures goods and delivers them to the customer on the basis of an order placed by the customer in accordance with the customer's instructions and guidelines, the customer shall be liable to Dichtungstechnik GmbH | MagnuSeals for the freedom of the deliveries and services ordered from third-party property rights. The customer shall indemnify Dichtungstechnik GmbH | MagnuSeals against all corresponding claims and shall compensate it for any damage incurred.
2. Insofar as Dichtungstechnik GmbH | MagnuSeals provides the customer with tools, designs, installation suggestions, or other drawings and documents together with the goods, it reserves ownership and all protection and usage rights to these items. The customer is only entitled to use them within the scope of the concluded contract; in particular, the customer is not entitled to reproduce such items or make them available to third parties.

XI. Confidentiality

Unless expressly agreed otherwise in writing, information received in connection with orders shall be deemed non-confidential.

XII. Data protection

Dichtungstechnik GmbH | MagnuSeals is entitled to store and process all data received in connection with the execution of the contract about the customer for its own purposes in compliance with the provisions of the Federal Data Protection Act / GDPR. A current version of the valid privacy policy can be found at https://magnuseals.com/en/privacy.

XIII. Partial effectiveness

Should any provision in these terms and conditions or any provision in other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements. In the event of a provision being invalid, the parties undertake to replace it with another provision that comes closest to the economic purpose of the invalid provision.

XIV. Place of jurisdiction; place of performance

If the customer is a merchant, a legal entity under public law, or a special fund under public law, the place of jurisdiction for all disputes arising from contractual relationships between the customer and Dichtungstechnik GmbH | MagnuSeals is the registered office of Dichtungstechnik GmbH | MagnuSeals. However, Dichtungstechnik GmbH | MagnuSeals is also entitled to sue the customer at its place of business. Unless otherwise stated in the order confirmation, the place of performance is the place of business of the branch of Dichtungstechnik GmbH | MagnuSeals that carries out the respective delivery.

XV. Applicable law

The terms and conditions and all legal relationships between the customer and Dichtungstechnik GmbH | MagnuSeals are governed by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (“CISG”) does not apply.