MIGAL.CO GmbH is a private limited company under German law whose head office is situated in Landau/Isar, Germany.
Dipl.-Ing. Martin Erl, Pappelweg 15, 94419 Reisbach
Ing. Robert Lahnsteiner, Wattstrasse 2, 94405 Landau/Isar
Postal address : MIGAL.CO GmbH, Wattstraße 2, D-94405 Landau/Isar
Phone: +49 (0)9951 69059-0
Fax: +49 (0)9951 69059-3900
VAT ident. nr : DE 812 830 895
Tax reference number: 10813240012
D-U-N-S® number: 329199520
Bank details: VR-Bank Landau e.G., BLZ 741 9100 00, Kto.Nr.: 23388
S.W.I.F.T., BIC: GENODEF1LND
MIGAL.CO GmbH is registered in the commercial register of the local court of Landshut under the number HRB 5108.
You can cancel your agreement within two weeks without justifying in writing (eg, letter, fax, e-mail) or - if done before the deadline - by returning the goods. The period begins after receipt of this written instruction but not before receipt of the goods by the recipient (when goods are delivered in several rounds, not prior to receipt of the first part-delivery) nor before our information obligations are met in accordance with section 312c, paragraph 2, BGB in connection with sections 1, 2 and 4 BGB-InfoV and our obligations under section 312 e, paragraph 1, sentence 1, BGB together with § 3 BGB-InfoV. The withdrawal period shall be deemed to have been observed if you send the cancellation form or return the goods before the deadline. The withdrawal must be sent to :
Phone: +49 (0) 9951 601230
In order to validate your right of withdrawal, the reciprocal services must be returned and, where appropriate, use of benefits (eg interest) be reimbursed. If you can not give us back the service received in whole or in part or only in a deteriorated condition, you may have to pay us compensation. This does not apply to the surrender of goods if the deterioration of the item is solely attributable to its examination - as would have been possible in a shop, for example. Incidentally, you can avoid the obligation to pay compensation for a deterioration caused by the intended use of the item by not using the item as your own property and refraining from doing anything that impairs its value. Parcel shipping items are to be returned at our risk. You have to bear the costs of the return, if the delivered commodity corresponds to the ordered and if the price of the thing to be returned does not exceed an amount of 40 euros or at a higher price of the item, if at the time of the revocation you still have not wholly or partly paid for it as agreed by a contract. Otherwise, the return is free of charge for you. Non-parcels are picked up at your place Payment obligations must be fulfilled within 30 days. The time limit begins for your part as of the date you send your withdrawal or item, and for our part upon receipt.
I. General provisions
The scope of the deliveries or services (hereinafter referred to as "deliveries") shall be determined by the written declarations of both parties. However, the Purchaser's general terms and conditions of business shall only apply to the extent that the supplier or service provider (hereinafter referred to as "Supplier") has expressly agreed to them in writing.
2. the supplier reserves the unrestricted right of ownership and copyright exploitation of cost estimates, drawings and other documents (hereinafter referred to as "documents"). The documents may only be made available to third parties with the prior consent of the supplier and must be returned to the supplier immediately on request if the order is not placed with the supplier. Sentences 1 and 2 shall apply mutatis mutandis to documents of the Purchaser, which may, however, be made accessible to third parties to whom the Supplier may rightfully transfer Supplies.
The Purchaser shall have the non-exclusive right to use standard software with the agreed performance characteristics in unchanged form on the agreed equipment. The Purchaser may make two backup copies without express agreement.
4. partial deliveries are permitted, provided they are reasonable for the buyer.
5) Our offers are subject to change without notice. Conclusions and other agreements are only binding with our written confirmation.
II Prices and terms of payment
1.the prices are ex works excluding packaging plus the respectively valid sales tax.
2. if the supplier has assumed responsibility for installation or assembly and unless otherwise agreed, the orderer shall bear all necessary ancillary costs such as travel expenses in addition to the agreed remuneration.
3. payments are to be made free supplier's paying agent.
The Purchaser may only set off against claims that are undisputed or legally binding.
III. reservation of title
1.the goods shall remain the property of the seller until full payment of all claims arising from the business relationship, including incidental claims, claims for damages and the cashing of cheques and bills of exchange.
2.the reservation of title shall also remain in force if individual claims of the seller are included in a current invoice and the balance is drawn and acknowledged.
3.If goods subject to retention of title are processed into a new movable item by the buyer, the processing is carried out for the seller without the seller being obligated as a result. The new object becomes the property of the seller. In the event of processing, mixing or blending with goods not belonging to the seller, the seller shall acquire co-ownership of the new item in the ratio of the invoice value of his reserved goods to the total value.
4.The buyer is only entitled to resell, further process or install the goods subject to retention of title under consideration of the following provisions and only on the condition that the claims pursuant to item 6. actually pass to the seller.
5.The Buyer's authority to sell, process or install goods subject to retention of title in the ordinary course of business shall end upon revocation by the Seller as a result of a sustained deterioration in the Buyer's financial situation, but no later than upon the Buyer's suspension of payments or upon the filing or opening of insolvency proceedings against its assets.
6.a)The buyer hereby assigns the claim with all ancillary rights from the resale of the reserved goods including any balance claims - to the seller.
b) If the goods have been processed, mixed or blended and if the Seller has acquired co-ownership of them in the amount of their invoiced value, the Seller shall be entitled to the purchase price claim in proportion to the value of his rights to the goods. If goods subject to retention of title are installed by the buyer in a plot of land / building, the buyer hereby assigns the resulting claim for remuneration or from the resale of the plot of land / building in the amount of the invoiced value of the goods subject to retention of title with all ancillary rights, including such for the granting of a security mortgage with priority over the rest.
c) If the buyer has sold the claim within the scope of genuine factoring, the seller's claim shall become due immediately and the buyer shall immediately transfer the claim taking its place to the seller. The seller accepts this assignment.
7.the buyer is authorised, as long as he meets his payment obligations, to collect the assigned claims. The authorisation to collect shall expire upon revocation, but at the latest when the buyer is in default of payment or when the buyer's financial circumstances deteriorate significantly. In this case, the seller is hereby authorised by the buyer to inform the customers of the assignment and to collect the claims himself. The buyer is obliged to hand over to the seller on request a precise list of the claims to which the buyer is entitled, including the names and addresses of the customers, the amount of the individual claims, invoice date, etc. and to provide the seller with all information necessary for the assertion of the assigned claims and to allow the verification of this information.
8) If the value of the security existing for the seller exceeds the seller's total claims by more than 20%, the seller is obliged to release securities of his choice upon request of the buyer or a third party affected by the seller's excess security.
9. pledging or transfer of ownership by way of security of the goods subject to retention of title or the assigned claims are not permitted. The seller is to be informed immediately of seizures, stating the pledge creditor.
10.if the seller takes back the delivery item on the basis of the reservation of title, this shall only constitute a withdrawal from the contract if the seller expressly declares this. The seller can satisfy himself from the taken back reserved goods by private sale.
11.the buyer stores the reserved goods for the seller free of charge. He must insure them against the usual risks such as fire, theft and water to the usual extent. The buyer herewith assigns to the seller his claims for compensation, which he is entitled to from damages of the above-mentioned kind against insurance companies or other parties liable to pay compensation, in the amount of the invoice value of the goods. The seller accepts the assignment.
12) All claims as well as the rights arising from the reservation of title to all special forms defined in these terms and conditions shall remain in force until complete release from contingent liabilities which the seller has entered into in the interest of the buyer.
IV. Deadlines for deliveries and default
1.compliance with agreed delivery periods is subject to the timely receipt of all documents to be supplied by the Purchaser, necessary permits and releases, in particular of plans, as well as compliance with the agreed terms of payment and other obligations by the Purchaser. If these conditions are not fulfilled in time, the time limits shall be extended accordingly; this shall not apply if the Supplier is responsible for the delay.
If non-observance of the time limits is due to force majeure, e.g. mobilization, war, riot or similar events, e.g. strike or lockout, the time limits shall be extended accordingly.
If the Supplier is responsible for the delay and the Purchaser demonstrably suffered a loss therefrom, the Purchaser may claim a compensation as liquidated damages of 0.5% for every completed week of delay, but in no case more than a total of 5% of the price of that part of the Supplies which because of the delay could not be put to the intended use.
Claims for damages by the Purchaser exceeding the limits specified in No. 3 above shall be excluded in all cases of delayed Supplies even upon expiry of a reasonable grace period granted to the Supplier. This shall not apply in cases of mandatory liability based on intent or gross negligence; this shall not imply a change in the burden of proof to the detriment of the Purchaser. The right of the buyer to withdraw from the contract after fruitless expiry of a grace period granted to the supplier remains unaffected.
If dispatch or delivery is delayed at the Purchaser's request by more than one month after notice of the readiness for dispatch was given, the Purchaser may be charged, for every month commenced, storage costs of 0.5% of the price of the items of the Supplies, but in no case more than a total of 5%. The contracting parties are at liberty to prove higher or lower storage costs.
V. Transfer of risk
The risk shall pass to the customer as follows, even in the case of carriage paid delivery:
a) in the case of deliveries without installation or assembly, when they have been brought to dispatch or collected. At the request and expense of the Purchaser, the Supplier shall insure the Supplies against the usual risks of transport.
b) if the Supplies include assembly or erection, on the day of taking over in the own works or, if so agreed, after a fault-free trial run.
If dispatch, delivery, the start or performance of assembly or erection, the taking over in the own works or the trial run is delayed for reasons for which the Purchaser is responsible or if the Purchaser has otherwise failed to accept the Supplies, the risk shall pass to the Purchaser.
VI. installation and assembly
Unless otherwise agreed in writing, the following provisions shall apply to installation and assembly:
1. the orderer has to take over at his own expense and provide in time:
a) all earthwork, construction work and other ancillary work outside the industry, including the necessary skilled and unskilled labour, building materials and tools.
b) the commodities and materials required for assembly and commissioning, such as scaffolding, lifting gear and other devices, fuels and lubricants,
(c) energy and water at the point of use, including connections, heating and lighting
d) suitable dry and lockable rooms of sufficient size adjacent to the site for the storage of machine parts, apparatus, materials, tools, etc. and adequate working and recreation rooms for the erection personnel, including sanitary facilities appropriate to the circumstances; furthermore, the Purchaser shall take the same measures to protect the possessions of the Supplier and of the erection personnel on the site as it would take to protect its own possessions
e) protective clothing and protective devices required due to special circumstances on the assembly site,
Prior to commencement of the assembly work, the customer shall provide the necessary information on the location of concealed power, gas and water lines or similar installations as well as the necessary structural data without being asked.
Prior to assembly or erection, the materials and equipment necessary for the work to start must be available on the site of assembly or erection and any preparatory work must have advanced to such a degree that assembly or erection can be started as agreed and carried out without interruption. Access roads and the installation or assembly site must be levelled and cleared.
If assembly, erection or commissioning is delayed due to circumstances for which the supplier is not responsible, the customer shall bear the reasonable costs incurred for idle times and any additional travelling of the supplier or the erection personnel.
The Purchaser shall provide the Supplier with a weekly statement of the hours worked by the assembly personnel and shall immediately certify to the Supplier the completion of assembly, erection or commissioning.
6. if the supplier demands acceptance of the delivery after completion, the orderer must carry this out within two weeks. If this is not done, acceptance shall be deemed to have taken place. Acceptance shall also be deemed to have taken place when the delivery has been put into use - if applicable, after completion of an agreed test phase.
Deliveries are to be accepted by the customer, even if they have minor defects.
The supplier shall be liable for defects, which also include the absence of warranted characteristics
All those parts or services whose usability is not only insignificantly impaired within 6 months - regardless of the operating time - calculated from the day of the transfer of risk as a result of a circumstance prior to the transfer of risk shall, at the discretion of the supplier, be repaired, replaced or provided again free of charge.
Warranty claims shall become statute-barred 6 months after notification of the complaint; the Supplier must be notified of this immediately in writing.
In the event of a notification of defects, payments by the buyer may be withheld to an extent that is in reasonable proportion to the defects that have occurred. If the contract is part of the operation of his trade, the Purchaser may withhold payments only if a notice of defect is asserted, the justification of which is beyond doubt.
4) The supplier must be granted reasonable time and opportunity to remedy the defects. If he is refused this, he is insofar released from the warranty.
5) If the supplier allows a reasonable period of grace granted to him to elapse without remedying the defect, the buyer can demand cancellation of the contract (redhibition) or reduction of the remuneration (abatement).
The warranty does not extend to natural wear and tear or damage that occurs after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials, defective construction work, unsuitable building ground or that occurs due to special external influences that are not presupposed under the contract, as well as non-reproducible software errors. If improper modifications or repair work are carried out by the buyer or third parties, no warranty shall exist for these and the consequences arising therefrom.
The warranty period for repairs, replacement deliveries or replacement services is 6 months; it runs at least until the expiry of the original warranty period for the delivery item. For those parts that cannot be operated as intended due to the interruption, it is extended by the duration of the interruption of operation caused by the repair, replacement delivery or replacement service.
The periods mentioned in numbers 1, 2 and 7 do not apply if the law according to Â§ 638 BGS prescribes longer periods.
9. further warranty claims of the customer against the supplier and his vicarious agents are excluded; Art. XI (other liability) remains unaffected.
IX. Industrial property rights and copyrights
If a third party asserts justified claims against the Purchaser due to the infringement of an industrial property right or copyright (hereinafter referred to as property rights) by products delivered by the Supplier and used in accordance with the contract, the Supplier shall be liable to the Purchaser as follows
a) The Supplier shall, at its own discretion and at its own expense, either obtain a right of use for the product, modify the product so that the property right is not infringed, or replace the product. If this is not possible for the Supplier under reasonable conditions, the Supplier shall take back the product and refund the purchase price.
b) The above-mentioned obligations of the Supplier shall only apply if the Purchaser immediately notifies the Supplier in writing of any claims asserted by the third party, does not concede the existence of an infringement and leaves any protective measures and settlement negotiations to the discretion of the Supplier. If the Purchaser stops using the product in order to reduce the damage or for other important reasons, it shall be obliged to point out to the third party that the cessation of use does not imply any acknowledgement of an infringement of property rights.
2. claims of the buyer are excluded, as far as he is responsible for the infringement of property rights.
Claims of the buyer are further excluded if the infringement of the property right is caused by special requirements of the buyer, by an application not foreseeable by the supplier or by the fact that the product is modified by the buyer or used together with products not supplied by the supplier.
4.further claims against the supplier are excluded; Art. XI (other liability) remains unaffected, as does the right of the Purchaser to withdraw from the contract.
X. Impossibility, adaptation of contract
If the supplier is unable to make the delivery for which he is responsible for reasons for which he is responsible, the customer is entitled to demand compensation. However, the Purchaser's claim for damages shall be limited to 10% of the value of that part of the delivery which, owing to the impossibility, cannot be put to the intended use. This shall not apply in cases of mandatory liability based on intent, gross negligence or initial inability; this shall not imply a change in the burden of proof to the detriment of the Purchaser. The right of the buyer to withdraw from the contract remains unaffected.
2. if unforeseeable events within the meaning of Art. IV No. 2 substantially change the economic importance or the contents of the Supplies or considerably affect the Supplier's business, the contract shall be adapted accordingly in good faith. If this is not economically justifiable, the Supplier shall be entitled to withdraw from the contract. If he wishes to exercise this right of withdrawal, he shall notify the Purchaser thereof without undue delay after having realised the repercussions of the event, even if an extension of the delivery period had initially been agreed with the Purchaser.
XI. other liability
Claims for damages on the part of the customer, regardless of the legal grounds, in particular for positive violation of claims, for violation of duties during contract negotiations and for tort, are excluded. This does not apply if, for example, liability is mandatory under the Product Liability Act or in cases of intent, gross negligence, the absence of warranted characteristics or the breach of material contractual obligations. However, compensation for the breach of essential contractual obligations shall be limited to the foreseeable damage typical for the contract, unless there is intent or gross negligence. A change in the burden of proof to the disadvantage of the buyer is not associated with the above provisions.
XII. Place of jurisdiction
If the customer is a registered trader, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is, at the discretion of the supplier, the head office or the branch of the supplier.
The contractual relationship shall be governed by German law, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
XIII Binding force of the contract
The contract remains binding in its remaining parts even if individual points are legally ineffective. This shall not apply if adherence to the contract would represent unreasonable hardship for one of the parties.