Magnatech International
General Terms and Conditions, 01-01-2011
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1. Offer and Agreement
a. These General Terms and Conditions shall apply to all our offers, legal relationships and Agreements under which we provide goods and/or services of whatever nature to the Ordering Party.
Deviations from and additions to these General Terms and Conditions shall only be valid if they have been expressly agreed in writing. All offers and other statements by the Ordering Party shall be without obligation, unless we expressly indicate otherwise in writing. The Ordering Party warrants the accuracy and completeness of the measurements, requirements, performance specifications and other data on which we base our offer and which have been stated by or on behalf of the Ordering Party to us.
b. Unless our offer makes express mention of a period of engagement, the offers are without engagement and subject to alteration. Documents pertaining to our offers – such as drawings, illustrations, samples and patterns, and dimensional, weightdata – contain of themselves constitute only approximate data and are not deemed to be specially agreed characteristics unless otherwise provided.
c. If reference is made to any performance of our goods offered, this reference can only constitute an estimate under perfect(ly) (controlled) conditions.
2. Acceptance of the order; supplementary agreements
Acceptance of an order, and any undertakings or supplementary agreements made by our employees, as well as amendments and alterations of any kind, shall not be binding upon us until we have explicitly issued written confirmation.
3. Price and payment conditions; offsetting.
a. Unless explicitly agreed otherwise, prices are valid until 14 days after quotation, ex-works prices (EXW, INCT 2000), exclusive of packaging, insurance, loading at the factory and value-added tax.
Payments are to be made net cash, without any deduction and free of charges, within 14 days of the invoice date. Claims or partial claims of the Ordering Party’s may never be offset against such payments.
b. If the payment period is exceeded, we shall be entitled to charge default interest at a rate of ten percentage points above the applicable base rate announced by the Dutch National Bank, plus the collection costs. This is without prejudice to any further actions resulting of the default in payment.
Where the Ordering Party holds claims against ourselves, we are entitled to offset these against our own claims against the Ordering Party, at any time.
c. For services performed under contracts for work and materials (installation, repairs, maintenance and other such work), we shall charge the hourly rates and materials-prices applicable at the time of completion, plus our applicable surcharges for any overtime, night-time, Sunday and public-holiday working; travel and waiting times are counted as working hours. Travel expenses and daily and overnight allowances will be invoiced separately.
4. Passage of risk
a. Risk shall pass to the Ordering Party as soon as the articles to be delivered, or the articles on which we have performed maintenance, repair or other work, have left our factory. The same shall also apply to part-deliveries or in cases where we have undertaken to bear the shipping charges or to perform delivery, setting-up, assembly, installation or other similar services. If the maintenance, repair or other work is carried out in the domain of the Ordering Party, then risk shall pass to this latter as soon as it has received notification that the work in question has been completed.
b. If there is any delay in dispatching or delivery the shipment for reasons for which we are not liable, the risk shall pass to the Ordering Party as soon as it has been notified that the consignment is ready for delivery.
5. Retention of title: rescission
a. We shall retain title to the article(s) delivered until our purchase-price claims, and all other claims that we have – on whatever legal grounds – against the Ordering Party, have been settled in full.
b. The Ordering Party is only permitted to re-sell the article delivered – even if this has been joined to other items or subjected to processing – in the course of its company’s regular business operations. However, this permission is precluded if the resulting claims are assigned to third parties or are the subject of an assignment prohibition, or if the Ordering Party is insolvent or in default with the performance of its contractual obligations. No other manner of disposition whatever is permitted to the Ordering Party. In the event of distrainment, confiscation or other disposition by third parties, the Ordering Party is to notify us hereof immediately. Our legal expenses incurred in connection with the enforcement of our title are to be borne by the Ordering Party.
c. The Ordering Party assigns to us even now its claims and other rights from the re-sale, rental or leasing of the article delivered, even if this latter has been joined together with other items or subjected to processing; the Ordering Party shall make an entry to this effect in its books. If the article delivered is sold or placed into the hands of a third party for such party’s use together with other items (regardless of whether or not it has been joined to any such items or subjected to processing), then the receivables claim shall only be assigned up to the amount of the purchase price owed to ourselves. This is without prejudice to any further damages claims.
d. The Ordering Party is only entitled to collect the claims and to assert the other rights to the extent that it has met its payment obligations towards us and is not insolvent. If the Ordering Party should act contrary to the terms of the contract – in particular by being in arrears with payment or with any other contractual obligation, and/or by being insolvent – we shall be entitled, at our own discretion, either to terminate the contract without granting any grace period or, while leaving the contract in force, to take back the article delivered or to forbid it to be used. We shall also be entitled to sell the taken-back article in the open market; after deduction of a handling fee of 20% of the proceeds thus realized, the remainder will be debited from the total of our outstanding claims against the Ordering Party. Pending return of the article in the event of our terminating the contract, we shall charge the Ordering Party a usage fee of 5% of the original value of the article, unless the actual diminution in its value is even greater.
6. Warranty
a. We give no warranty for ordinary deviations in size, weight or quality (or as tolerated by NEN, EN or DIN standards), and also no warranty for information given regarding the suitability of the article(s) to be delivered for the purpose contemplated by the Ordering Party, or for any other particular purpose.
b. Although we warrant the correctness of our processing instructions, user/operating manuals and customer advisory service, compliance with statutory or other regulations when using the articles delivered, and the testing of these articles for the purpose envisaged, shall remain the sole responsibility of the Ordering Party, we shall only be answerable for any instructions differing from our written processing instructions and user/operating manuals if we previously confirmed these deviations in writing, either by letter, telefax or e-mail.
c. Articles or services supplied must be inspected by the Ordering Party immediately after delivery has been taken of them. Any defects must be reported to us immediately upon being discovered, in a written notice sent by letter, telefax or e-mail quoting the number and date of the order confirmation note, of the delivery note or of the invoice, and the serial and commission numbers. If the Ordering Party omits to make this immediate notification, it may no longer assert any warranty claims or claims for compensatory damages on account either of the defect itself or of any misapprehension as to whether the delivery or service was free of defects. The notice must set out which delivered items or supplied services are affected by the defects, what the defects consist of in detail, and under what concomitant circumstances these defects occurred. Every single defect must be exactly described. Any costs which we incur as a result of unjustified notices or notices that are otherwise at variance with the conditions of use are to be refunded to us by the Ordering Party.
d. In the case of corrective and preventive maintenance work, our warranty shall be limited to the services actually rendered. We shall only warrant correct functioning of an installation, machine or the like whose components were not all supplied by ourselves if we have undertaken – despite the provision of certain components by the Ordering Party or by third parties – to manufacture the installation (or machine etc.) as a whole, and if the faulty functioning in question is not attributable to incorrect of incomplete information from the Ordering Party.
e. Unless otherwise agreed, the warranty period shall be 12 months, unless the economic lifecyclus of the product does not exceed such term and the warranty period will thus be maximized to such a term.
Under all circumstances, from the beginning of the 13th month of this period, however, our warranty shall be limited to making available, free of charge, the items needed for remedying the defects; from this time onwards, any warranty claims going beyond the above shall be inadmissible. This period limitation also applies to the supply of items deemed to be immovable and to work on items which are, or are deemed to be, immovable. The warranty period shall start to elapse upon the passage of risk.
f. The Ordering Party must always prove that defects coming to light during the warranty period were already present at the time of the passage of risk.
In cases where we do give warranty, we shall – at our own discretion and within a reasonable period of at least 4 weeks’ duration – either exchange the defective article itself, or its defective components, for a defect-free article or defect-free components, or remedy the defect(s), or grant the Ordering Party a reasonable reduction in price, or (unless the defect in question is a minor one) cancel the contract. The warranty period is not prolonged by the exchange of the item or of parts or components belonging to the item. If, however, the remainder of the warranty period – including that part of the period during which our warranty is limited to free provision of the requisite materials – lasts for less than twelve months, then the warranty period for the exchanged items, parts or components shall be extended to twelve months. The items, parts or components thus exchanged shall become our property. We shall not refund the costs for any actual or attempted remedying of a defect by the Ordering Party or by any third party. To the extent that is necessary and may reasonably be expected of the Ordering Party, the object of delivery or performance, or the defective part(s) thereof, are to be dispatched or shipped to us immediately at our request, at the Ordering Party’s risk and expense, failing which any and all warranty obligation on our part shall become void.
g. The Ordering Party is not entitled to withhold payment on account of warranty claims or other counter-claims not recognized by ourselves.
Warranty claims from the Ordering Party are excluded in cases where the installation, user and operating manuals provided by ourselves, or to be requested from us by the Ordering Party, have not been observed, or where the user has not been (fully) obligated to observe such instructions; if the installation work has not been performed properly and in accordance with the relevant Standards, and in particular if was not carried out by licensed contractors; if any corrective maintenance or other work has been performed on the object of delivery or performance without our consent; if it has been improperly operated or used, or operated despite its protective features being faulty, or taken out of the contract territory without our consent, or used contrary to our instructions or for purposes for which it is not intended; and, moreover, where defects are attributable to foreign object damage, chemical influences, overvoltage, the conduct of third parties or to force majeure; the same applies in respect of natural wear and-tear. Our warranty is also excluded in cases where we have been contracted to carry out repair-orders, to alter or modify used items, or to supply such items.
h. The Ordering Party shall give us prior written notice of any intended modifications to the article delivered, or to its mode of operation, and permit restricted investigations by persons appointed by ourselves, failing which the Ordering Party shall forfeit all warranty (or separately agreed guarantee) and damages claims.
i. In addition to all the above: No products delivered by Magnatech have unlimited warranty. The terms and conditions thereof are never beyond/ more extensive than the terms and conditions rewarded by Magnatechs Supplier(s).The Ordering party may refer directly to Magnatech as it’s contracting party. The Limited Warranty shall be attached as Annex 1. If the Annex mentions the location of the Supplier, this will have to be read as the location of Magnatech itself. Magnatech may- at it’s sole discretion- decide whether or not defective products will be repaired on location or at the location of Magnatech.
7. Damages and product liability
a. We shall only accept unlimited liability for damage, of whatever kind, to the extent that the Ordering Party proves that we ourselves brought about this damage either knowingly and willfully or grossly negligently. If the Ordering Party proves that we have caused damage in an ordinarily negligent manner, our obligation to indemnify shall be limited to the damage actually incurred, and, moreover, to a maximum overall amount not exceeding the total order value if such value does not exceed the amounts that are covered by insurances from either Party, but under all circumstances damages are limited to an amount of € 75.000. Furthermore, claims of this type may only be enforced at law if asserted within six months of the damage in question becoming known.
b. In the event that we are taken to law by a third party where we heave produced and delivered in accordance with the drawings, designs, models or other documents provided by the Ordering Party, the Ordering Party shall indemnify and save us harmless.
Our liability to pay damages for property damage by reason of the applicable product liability legislation, including all rights of recourse, is excluded. When using the installations, machines and other articles delivered by ourselves, the Ordering Party is obliged to painstakingly observe all safety regulations, technical rules, installation regulations, operating instructions and user manuals, and in particular all regulations applying to the electrical engineering field, and to allow only authorized skilled personnel to operate the equipment.
8. Final provisions
The place of performance for deliveries, other services and payments, and the sole place of jurisdiction, shall be Zwolle, Netherlands. However, Magnatech shall also be entitled to go to law against the Ordering Party at the court which has “in-rem” and territorial jurisdiction under the relevant regulations for the Ordering Party’s commercial domicile or place of residence.
Legal disputes arising out of the contract are to be exclusively governed by Dutch law. The UN Convention on Contracts for the International Sale of Goods, on the other hand, shall not be applicable.
ANNEX 1 – LIMITED WARRANTY
General
Magnatech warrants equipment that it manufactures to be free from defects from material and workmanship under normal use and service for the periods defined below. This Warranty shall apply to the Original Purchaser only, and is not transferable. All warranty time periods start on the date that the equipment was delivered to the original retail purchaser. Our sole obligation under this warranty is limited to repairing or replacing the defective part or parts, which in our judgment show evidence of such defects. All warranty repair work shall be accomplished at the factory and Magnatech assumes no obligation to perform warranty service at a customer's facility. This warranty is given in lieu of and to the exclusion of any and all other warranties, express or implied. Specifically, and without limiting the generality of the above disclaimer, Magnatech disclaims any warranty of merchantability or fitness for any particular purpose as to any and all goods sold to the Buyer (whether for the ultimate use of the Buyer, or any other person) pursuant to the purchase order, contract or in connection therewith.
Covered components
- 12 months – Parts and Labor for: All Magnatech Power Sources/Controllers All Model Water Circulators (with exception of Pump) All Weld Heads
- 6 months – Parts and Labor for: Switches
- 3 months – Parts and Labor for: Torch cable assemblies Relays Batteries
Excluded components
Magnatech Limited Warranty shall not apply to:
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1. Equipment Supplied Not Manufactured By Magnatech
With respect to standard equipment supplied by Magnatech as part of a complete welding system, Magnatech extends the same warranty as offered by the individual manufacturer of this standard equipment if any. In many instances such items are warranted directly by the manufacturer, and Magnatech may, from time to time, inform the customers of such warranty coverage; however, Magnatech does not guarantee the accuracy of completeness of its information regarding such warranties.
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2. Expendable Items
This warranty does not cover certain items considered expendable and certain high wear items offered herein. Expendable items consist of welding torch components, wire feed conduits, motor brushes, fuses, bulbs and filters.
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3. Modification And Misuse
This warranty does not apply to products which have been modified in any way by any party other than Magnatech; nor to products which have not been installed and operated in accordance with applicable industry standards; or to products which have been used other than under usual conditions for which they are designed; nor to products that have not received proper care, protection and maintenance under supervision of competent personnel.
The Tubemaster, Pipemaster, and Pipeliner systems are intended to be used SOLELY for GTAW or GMAW/FCAW orbital welding applications. Any other use is deemed to be “not for the intended purpose” and the manufacturer shall not be liable for any damage resulting there from.
Utilization for the intended purpose includes: observance of all instructions in the operating manual performance of all prescribed inspection and maintenance work.
Magnatech products are intended for purchase and use by commercial/industrial users and persons trained and experienced in the use and maintenance of welding equipment.
Performance of warranty repairs – location
Magnatech’s obligation under this warranty shall be limited to the repair or replacement, at its option, of any goods or any components or parts thereof sold by Magnatech to Buyer that prove to be defective upon Magnatech’s examination. Returned goods shall be delivered F.O.B. Magnatech’s plant, East Granby, Connecticut, at Buyers risk and expense.
Disclaimer
Magnatech shall not be otherwise liable for any damages including but not limited to incidental damage, consequential damage, or special damages, whether such damages result from negligence, breach of warranty, or the result of repair and replacement activity, including, but not limited to any losses due to downtime or loss of use. Magnatech shall not be held liable for any lost profit or other damage, delay or loss which may result directly or indirectly from the adjustment, alteration, repair, maintenance, operation, or interruption thereof, of any said equipment.
There are no warranties of fitness for any particular purpose of said equipment or any other warranties (expressed, implied or statutory) concerning the performance capabilities thereof. Magnatech shall not be liable for any consequential, indirect or incidental losses or damages incurred as the result of any breach of warranty or as a result of any repair or replacement activity, including, but not limited to any losses due to down time or loss of use. Magnatech shall not be liable for any losses, injuries or damages sounding in tort, whether for the negligence of Magnatech or its agents, officers or employees or in a strict liability theory.
To the extent permitted by law, the remedies provided herein are the sole and exclusive remedies. In no event shall Magnatech be liable for direct, indirect, special incidental or consequential damages (including loss of profit), whether based on contract, tort, or any legal theory.
Any express warranty not provided herein and any implied warranty guaranty or representation as to performance, and any remedy for breach of contract tort or any other legal theory which, but for this provision might arise by implication, operation of the law, custom of trade or course of dealing including any implied warranty of merchantability or fitness for particular purpose, with respect to any and all equipment furnished by Magnatech is excluded and disclaimed by Magnatech.