General terms and conditions of business
§ 1 Scope of application
These terms and conditions of sale apply exclusively to companies, legal entities under public law or special funds under public law within the meaning of § 310 paragraph 1 BGB (German Civil Code). We shall only recognise any terms and conditions of the customer which conflict with or deviate from our Terms and Conditions of Sale if we expressly agree to their validity in writing.
These Terms and Conditions of Sale shall also apply to all future transactions with the Customer, insofar as these are legal transactions of a related nature (as a precautionary measure, the Terms and Conditions of Sale should in any case be attached to the order confirmation).
Individual agreements made with the purchaser in individual cases (including collateral agreements, supplements and amendments) shall in all cases take precedence over these Terms of Sale. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.
§ 2 Offer and conclusion of contract
If an order is to be regarded as an offer in accordance with § 145 BGB, we can accept it within two weeks.
§ 3 Provided documents
We reserve the property rights and copyrights to all documents provided to the purchaser in connection with the placing of the order - including in electronic form - such as calculations, drawings, etc. These documents may not be made accessible to third parties unless we give the customer our express written consent. If we do not accept the offer of the customer within the period of § 2, these documents must be returned to us immediately.
§ 4 Prices and payment
Unless otherwise agreed in writing, our prices are ex works excluding packaging and plus value-added tax at the applicable rate. Packaging costs will be invoiced separately.
Payment of the purchase price shall be made exclusively to the account specified by us. The deduction of a discount is only permissible if specifically agreed in writing.
Unless otherwise agreed, the purchase price shall be paid within 10 days after delivery. Interest on arrears shall be charged at a rate of 8% above the respective base rate p.a. We reserve the right to assert a higher damage caused by default.
Unless a fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in wage, material and distribution costs for deliveries that take place 3 months or later after conclusion of the contract.
§ 5 Rights of Retention
The customer is only entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
§ 6 Delivery time
The beginning of the delivery time stated by us presupposes the timely and proper fulfilment of the obligations of the purchaser. We reserve the right to raise the defence of non-performance of the contract.
If the customer is in default of acceptance or if he culpably violates other obligations to cooperate, we are entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to make further claims. Insofar as the above conditions are met, the risk of accidental loss or accidental deterioration of the purchased goods shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor's delay.
In the event of a delay in delivery not caused by us intentionally or by gross negligence, we shall be liable for each completed week of delay within the scope of a lump-sum compensation for delay in the amount of 1.5% of the delivery value, but not more than 6% of the delivery value.
Further legal claims and rights of the customer due to a delay in delivery remain unaffected.
§ 7 Transfer of risk on dispatch
If the goods are shipped to the customer at the latter's request, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer upon dispatch to the customer, at the latest upon leaving the factory/warehouse. This applies regardless of whether the goods are dispatched from the place of performance or who bears the freight costs.
§ 8 Retention of title
We reserve the right of ownership of the delivered item until all claims arising from the delivery contract have been paid in full. This also applies to all future deliveries, even if we do not always expressly refer to this. We shall be entitled to take back the object of sale if the customer acts in breach of contract.
As long as the ownership has not yet been transferred to the customer, the customer is obliged to treat the object of purchase with care. In particular, he is obliged to insure it sufficiently at his own expense against theft, fire and water damage at replacement value (Note: only permissible when selling high-value goods). If maintenance and inspection work has to be carried out, the purchaser must carry this out in good time at his own expense. As long as ownership has not yet been transferred, the customer must inform us immediately in writing if the delivered item is seized or exposed to other third-party interventions. Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of a lawsuit in accordance with § 771 ZPO (German Code of Civil Procedure), the customer shall be liable for the loss incurred by us.
The customer is entitled to resell the reserved goods in the normal course of business. The customer hereby assigns to us all claims against the purchaser arising from the resale of the reserved goods in the amount of the final invoice amount agreed with us (including value-added tax). This assignment shall apply regardless of whether the purchased item has been resold without or after processing. The customer remains entitled to collect the claim even after the assignment. Our authority to collect the claim ourselves remains unaffected. However, we will not collect the claim as long as the customer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have not been suspended.
The treatment, processing or transformation of the object of sale by the customer is always carried out in our name and on our behalf. In this case, the expectant right of the customer to the object of purchase shall continue in the transformed object. If the purchased item is processed with other objects not belonging to us, we shall acquire co-ownership of the new item in the ratio of the objective value of our purchased item to the other processed objects at the time of processing. The same applies in the event of mixing. If the mixing is carried out in such a way that the customer's item is to be regarded as the main item, it is deemed to be agreed that the customer shall transfer proportional co-ownership to us and shall keep the sole ownership or co-ownership thus created for us. In order to secure our claims against the customer, the customer also assigns to us such claims which accrue to him against a third party through the connection of the reserved goods with a property; we hereby accept this assignment.
We undertake to release the securities to which we are entitled at the request of the purchaser if their value exceeds the claims to be secured by more than 20%.
§ 9 Warranty and notification of defects as well as recourse/manufacturer recourse / impartiality, confidentiality and conformity statement
Warranty rights of the customer require that he has properly fulfilled his obligations to examine and complain in accordance with § 377 HGB.
Warranty claims become statute-barred 12 months after delivery of the goods delivered by us to our customer. The statutory period of limitation shall apply to claims for damages in cases of intent and gross negligence as well as in cases of injury to life, body and health which are based on an intentional or negligent breach of duty by the user.
Insofar as the law according to § 438 Para. 1 No. 2 BGB (buildings and items for buildings), § 445 b BGB (right of recourse) and § 634a Para. 1 BGB (building defects) prescribes longer periods, these periods shall apply. Our consent must be obtained before any goods are returned.
If, despite all the care taken, the delivered goods show a defect that was already present at the time of the transfer of risk, we will, subject to timely notification of defects, either repair the goods or deliver replacement goods at our discretion. We must always be given the opportunity to remedy the defect within a reasonable period of time. Recourse claims shall remain unaffected by the above provision without restriction.
If the subsequent performance fails, the customer may - without prejudice to any claims for damages - withdraw from the contract or reduce the remuneration.
There shall be no claims based on defects in cases of insignificant deviation from the agreed quality, insignificant impairment of usability, natural wear and tear or wear and tear as well as damage arising 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 due to special external influences which are not provided for under the contract. If improper repair work or modifications are carried out by the customer or third parties, no claims for defects shall exist for these and the consequences thereof.
Claims of the purchaser for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded if the expenses increase because the goods delivered by us have subsequently been taken to a place other than the purchaser's branch office, unless the transfer corresponds to their intended use.
Recourse claims of the purchaser against us shall only exist insofar as the purchaser has not made any agreements with his customer that go beyond the legally binding claims for defects. Furthermore, paragraph 6 applies accordingly to the scope of the customer's right of recourse against the supplier.
MQS AG and in particular its employees of the testing laboratory shall, without exception, commit themselves to the principles of impartiality in all their actions. Impartiality is a central component of the company philosophy and is understood as the existence of objectivity. To this end, all staff of MQS AG are informed of the need for the policy of impartiality, are aware of it, are understood by it and are obliged to act impartially if any threat to impartiality becomes known. The staff of MQS AG will immediately report any threats or conflicts of interest to the management. Orders in connection with impartiality will not be accepted.
Without exception, MQS AG undertakes to maintain confidentiality for all information provided within the scope of the business relationship, regardless of its form. MQS AG further undertakes to impose the same confidentiality obligation on all third parties it involves in the performance of its services and, if necessary, to disclose or otherwise make available to third parties the contents of the order and other (confidential) documents and information provided within the scope of the order only with the consent of the respective other contracting party.
The testing laboratory of MQS AG does not make any statements regarding conformity! This applies to both the accredited and the non-accredited area.
§ 10 Miscellaneous
This contract and the entire legal relations between the parties are subject to the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
Place of performance and exclusive place of jurisdiction and for all disputes arising from this contract is our place of business, unless otherwise stated in the order confirmation.
All agreements made between the parties for the purpose of executing this contract are set out in writing in this contract.
Version 1.0 | February 2020