EMEA GmbH Distributor Terms and Conditions

Standard Terms and Conditions of Sale of QSC EMEA GmbH

(Last updated: December 10, 2018)

 

§ 1 Scope, Form

(1) The Standard Terms and Conditions of Sale (STCS) shall apply to all business relations with our customers (“Buyers”). The STCS shall only apply if the Buyer is an entrepreneur (§ 14 BGB – German Civil Code), a legal entity under public law or a special fund under public law.

(2) The STCS shall apply to contracts concerning the sale and / or delivery of our products. Unless otherwise agreed upon, the STCS shall apply in the version valid at the time of placement of the order of the Buyer and / or at any rate in the last version communicated to him in text form as a framework agreement also for similar, future agreements, without requiring a reference to them by us in each case.

(3) Our STCS shall apply exclusively. Any deviating, opposing or supplementing standard terms and conditions of the Buyer shall only become an integral part of the Agreement if and to the extent that we have expressly agreed to their validity. This requirement as to consent shall apply in each case, for instance even if we carry out the delivery with full knowledge of the standard terms and conditions of the Buyer to the latter without any reservation.

(4) Any individual agreements with the Buyer entered into in individual cases (including ancillary agreements, supplements and amendments) shall in each case have priority over these STCS. For the content of such agreements, a written contract and / or our written confirmation shall be authoritative, with reservation as to evidence to the contrary.

(5) Legally relevant declarations and notices of the Buyer in respect of the Agreement (e.g. setting a time limit, notice of defects, rescission or reduction of the purchase price) must be made in writing, ie in written or text form (e.g. letter, email, fax). Statutory requirements as to form and other evidence, more particularly in the event of doubts concerning the legitimation of the declaring party, shall not be affected.

§ 2 Conclusion of the Agreement

(1) Our offers shall be subject to confirmation and non-binding. This shall also apply if we have provided the Buyer with catalogues, technical documentations (e.g. drawings, plans, calculations, estimates, references to DIN standards), other product descriptions or documents – including in electronic form – in respect of which we reserve property rights and copyrights.

(2) The ordering of the goods by the Buyer shall be deemed to be a binding offer to enter into a contract. Unless otherwise stipulated in the order, we shall be entitled to accept this offer to enter into a contract within two weeks of its receipt by us.

(3) Acceptance can either be declared in writing (e.g. by a confirmation of order) or by the delivery of the goods to the Buyer.

§ 3 Delivery Term and Default in Delivery

(1) The delivery term shall be agreed individually and / or shall be stated by us upon the acceptance of the order.

(2) If we cannot meet binding delivery terms for reasons for which we are not responsible (non availability of the service), we shall inform the Buyer without delay and inform him at the same time about the probable new delivery term. If the service is likewise not available within the new delivery term, we shall be entitled to rescind the Agreement as a whole or in part; any counter performance by the Buyer shall be refunded immediately by us.

(3) The occurrence of our delay in delivery shall be determined by the statutory provisions. In each case a reminder by the Buyer shall, however, be necessary. If we are in default of delivery, the Buyer may demand a lump sum compensation for his damage caused by default. The damage lump sum shall amount for each calendar week of completed default 0.5% of the net price (delivery value) without exceeding 5% of the delivery value of the goods delivered late. We reserve the right to prove that no damage has been caused to the Buyer or that only a damage which is essentially lower than the aforementioned lump sum has been caused.

(4) The rights of the Buyer in accordance with § 8 of these STCS and our statutory rights, more particularly, in the event of an exclusion of the obligation to provide the services (e.g. due to impossibility or unreasonableness of the service and / or subsequent performance), shall not be affected.

§ 4 Delivery, Passing of Risk, Acceptance, Default in Taking Delivery

(1) The delivery shall be made ex warehouse, where also the place of performance for the delivery and a possible subsequent performance shall be. At the request and expense of the Buyer the goods shall be sent to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed upon, we shall be entitled to determine the type of shipment ourselves (in particular the transport company, the routing for the shipment, the packaging).

(2) The risk of accidental perishing and accidental deterioration of the goods shall pass no later than upon the handover to the Buyer. In the event of sale by delivery to a place other than the place of performance, the risk of accidental perishing and accidental deterioration of the goods as well as the risk of delay shall pass already upon the delivery of the goods to the forwarder, the carrier or any other person or establishment appointed to carry out the shipment. If an acceptance has been agreed upon, it shall be authoritative for the passing of risk. If the Buyer is in default with taking delivery, this shall be deemed to be equivalent to the handover.

(3) If the Buyer is in default with taking delivery, if he refrains from a participatory action or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to demand compensation for the damage caused as a result including extra expenses (e.g. warehousing costs). In this connection we shall charge a lump sum compensation in the amount of 0.5% of the agreed purchase price per calendar week up to a maximum not exceeding 5% or 10% in the event of a final non acceptance beginning with the delivery term or – if no delivery term has been agreed upon – upon the notice of readiness for despatch of the goods.

Evidence concerning a higher damage and our statutory claims (more particularly compensation for extra expenses, reasonable indemnification, termination) shall not be affected; the lump sum must, however, be offset against more extensive monetary claims. The Buyer may prove that we have not suffered any damage or only an essentially lower damage than the aforementioned lump sum.

§ 5 Prices and Terms of Payment

(1) Unless otherwise agreed upon in individual cases, our prices which are valid on the respective date of the conclusion of the Agreement shall apply, ex warehouse plus statutory value added tax.

(2) In the event of sale by delivery to a place other than the place of performance (§4.1) the Buyer shall bear the transport costs ex. warehouse and the costs of a transport insurance possibly requested by the Buyer. Any customs duties, fees, taxes and other public levies shall be borne by the Buyer.

(3) The purchase price shall become due and payable within 14 days of invoicing and delivery and / or acceptance of the goods. However, we shall be entitled at any time, also within the framework of an ongoing business relationship, to carry out a delivery as a whole or in part only subject to prepayment. A corresponding reservation shall be declared no later than upon the confirmation of the order.

(4) Upon the expiration of the aforementioned term of payment, the Buyer shall be in default. The purchase price shall bear interest during the period of default up to the respectively valid statutory default interest rate. We reserve the right to assert a more extensive damage caused by the delay. As far as merchants are concerned, our claim to the commercial maturity interest (§ 353 HGB – German Commercial Code) shall not be affected.

(5) The Buyer shall only have rights to offset or retain to the extent that his claim has been established in a final and conclusive manner or is uncontested. In the event of defects concerning the delivery, the reciprocal rights of the Buyer, in particular in accordance with § 7 Para 6 Sentence 2 of these STCS shall not be affected.

(6) If after the conclusion of the Agreement it becomes apparent (e.g. following an application to initiate insolvency proceedings) that our claim to the purchase price is jeopardised by a lack of solvency of the Buyer, we shall be entitled in accordance with the statutory provisions to refuse performance and – if necessary after having set a deadline – to rescind the Agreement (§ 321 BGB). In the event of agreements concerning the manufacturing of non-fungible goods (manufacturing to customer’s specification), we may declare rescission immediately; the statutory provisions governing the dispensability of setting a time limit shall not be affected.

§ 6 Retention of Title

(1) Pending full payment of all our current and future receivables under the purchase agreement and an ongoing business relationship (secured receivables), we reserve the title to the goods sold.

(2) The goods under reservation of title may not be pledged to third parties nor assigned by way of security to third parties prior to full payment of the secured receivables. The Buyer must inform us immediately in writing if an application to initiate insolvency proceedings has been made or if third parties have access to goods belonging to us (e.g. attachments).

(3) In the event of conduct on the part of the Buyer contrary to the terms of the contract, more particularly in the event of failure to pay the purchase price due, we shall be entitled to rescind the Agreement in accordance with the statutory provisions or / and to demand the surrender of the goods based on the reservation of title. The demand to surrender shall not include at the same time the declaration of rescission: we shall rather be entitled to merely demand the surrender of the goods and reserve the right to rescind the Agreement. If the Buyer fails to pay the purchase price due, we may only assert these rights if we have previously set the purchaser a reasonable deadline for payment without success or if such a setting of deadline is dispensable in accordance with the statutory provisions.

(4) The Buyer shall be entitled pending revocation in accordance with (c) below to resell the goods under a reservation of title in the ordinary course of business and / or process them. In this case, the following provisions shall apply in addition.

(a) The retention of title shall cover the products arising out of the processing, mixing or combining of our goods in the amount of their full value, whereby we shall be deemed to be the manufacturer. If in the event of processing, mixing or combining with goods of third parties, the latter’s property right continues to apply, we shall acquire co-ownership in the proportion of the invoice values of the goods processed, mixed or combined. As for the rest, the same provisions which apply to goods delivered under a retention of title shall apply to the resulting product.

(b) The receivables resulting from the resale of the goods or product against third parties shall be assigned by the Buyer already at this stage altogether and / or in the amount of our possible co-ownership share in accordance with the foregoing para to us by way of security. We hereby accept the assignment. The obligations of the Buyer referred to in Para 2 shall also apply to the assigned receivables.

(c) The Buyer shall be entitled in addition to us to collect the receivables. We undertake not to collect the receivables as long as the Buyer fulfils his payment obligations vis a vis us, there is no defect in respect of his solvency and we do not assert the reservation of title by exercising a right in accordance with Para 3. If this is, however, the case, we may demand that the Buyer discloses the assigned receivables and their debtors to us, provides all the information necessary for collection, submits the corresponding documents and informs the debtors (third parties) about the assignment. Moreover, we shall be entitled in this case to revoke the entitlement of the Buyer to further selling and processing the goods under a reservation of title.

(d) If the realisable value of the collaterals exceeds our receivables by more than 10%, we shall release at the request of the Buyer collaterals at our option.

§ 7 Claims of the Purchaser based on Defects

(1) The rights of the Buyer in the event of defects in quality and title (including wrong and short delivery as well as improper mounting or defective mounting instructions) shall be governed by the statutory provisions unless otherwise determined hereinbelow. In all cases the statutory special provisions for the final delivery of the unprocessed goods to a consumer, even if the latter has processed them further, shall not be affected (supplier recourse in accordance with §§ 478 BGB). Any claims under supplier recourse shall be excluded if the defective goods were further processed by the Buyer or another company (e.g. through the integration into another product).

(2) The basis of our liability for defects shall be governed, more particularly, by the Agreement entered into in respect of the condition of the goods. The Agreement concerning the condition of the goods shall be deemed to include all product descriptions and manufacturer data, which are covered by the individual agreement or had been publicly disclosed by us (more particularly in catalogues or on our website) at the time of the conclusion of the Agreement.

(3) If no agreement has been entered into in respect of the condition, it must be assessed in accordance with the statutory provisions whether there is a defect or not (§ 434 Para 1 Sentence 2 and 3 BGB). However, we shall not assume any liability for public statements of the manufacturer or other third parties (e.g. advertising claims) which have not been pointed out to us by the Buyer as critical for his purchase.

(4) The claims for defects of the Buyer presuppose that he has met his statutory obligation of examination and notification of defects (§§ 377, 381 HGB). In the event of goods intended for integration, an inspection must in each case be made immediately prior to the integration. If a defect is identified at the delivery, the inspection or any later point in time, we must be immediately notified in writing. In this case obvious defects must be notified in writing within seven working days from delivery and in the event of defects not detectable upon inspection within the same period from detection onwards. If the Buyer fails to make the proper inspection and / or notify the defects, our liability for the defect not notified or not notified in time or not properly notified shall be excluded in accordance with the statutory provisions.

(5) If the delivered products are defective, we may at first decide whether we carry out subsequent performance by remedying the defect (subsequent rectification) or by delivery of a defect free product (replacement delivery). Our right to refuse subsequent performance under the statutory conditions shall not be affected.

(6) We shall be entitled to make the owed subsequent performance dependent on payment of the purchase price due by the Buyer. The Buyer shall, however, be entitled to retain a part of the purchase price which is in a reasonable proportion to the defect.

(7) The Buyer must give us the time and opportunity necessary for the owed subsequent performance and, more particularly, to transmit the goods objected to for inspection purposes. In the event of a replacement delivery the Buyer must return the defective goods to us in accordance with the statutory provisions. Subsequent performance shall neither include the removal of the defective goods nor the new integration if we were not originally obliged to carry out such integration.

(8) The expenses necessary for the purpose of inspection and subsequent performance, more particularly transport, road, working and material costs as well as possible removal and integration costs, shall be borne or refunded by us subject to the statutory provisions if there is actually a defect. Otherwise we may demand a refund from the Buyer for the costs incurred in connection with the unjustified request for removal of defects (in particular inspection and transport costs), unless the defectiveness was not detectable for the Buyer.

(9) If subsequent performance has failed or if a deadline to be set by the Buyer for subsequent performance has expired without success or is dispensable in accordance with the statutory provisions, the Buyer may rescind the purchasing agreement or reduce the purchase price. In the event of an irrelevant defect, there shall, however, not be any right of rescission.

(10) Any claims of the Buyer to damages and / or compensation for expenses incurred in vain shall only exist in the event of defects in accordance with § 8 and shall as for the rest be excluded.

§ 8 Other Liability

(1) Unless otherwise provided for in these STCS including the provisions below, we shall be liable for a breach of contractual and extra-contractual obligations under the statutory provisions.

(2) We shall be liable for damages – regardless of the legal grounds – within the framework of fault-based liability in the event of wilful intent and gross negligence. In the event of simple negligence we shall be liable with reservation as to a milder standard of liability in accordance with the statutory provisions (e.g. for diligence in our own matters) only

a) for damage caused by injury to life, limb or health,

b) for damage caused by a not inconsiderable breach of a material contractual obligation (obligation whose fulfilment actually permits the proper execution of the Agreement and on compliance with which the contracting partner regularly relies and may rely); in this case our liability shall, however, be restricted to compensation for the foreseeable, typically occurring damage.

(3) The restrictions of liability resulting from Para 2 shall also apply to breaches of obligations by and / or for the benefit of persons for whose fault we are responsible in accordance with the statutory provisions. They shall not apply to the extent that we have fraudulently concealed a defect or have taken over a warranty for the condition of the goods or for claims of the Buyer under the Product Liability Act.

(4) In the event of a breach of obligation which does not consist in a defect, the Buyer may only rescind or terminate if we are responsible for the breach of obligation. A free right to terminate of the Buyer (more particularly in accordance with §§ 650, 648 BGB) is excluded. As for the rest, the statutory prerequisites and legal consequences apply.

§ 9 Period of Limitation

(1) By deviation from § 438 Para 1 No. 3 BGB, the general period of limitation for claims under material and legal defects shall amount to one year from delivery. If acceptance has been agreed upon, the period of limitation shall commence upon acceptance.

(2) The aforementioned period of limitation of the purchase right shall also apply to contractual and extra-contractual damage claims of the Buyer which are based on a defect of the goods unless the application of the regular statutory period of limitation (§§ 195, 199 BGB) would result in a shorter period of limitation in individual cases. Damage claims of the Buyer in accordance with. § 8 Para 2 Sentence 1 and Sentence 2(a) as well as in accordance with the Product Liability Act shall, however, become statute-barred exclusively in accordance with the statutory periods of limitation.

§ 10 Choice of Law and Place of Jurisdiction

(1) These STCS and the contractual relationship between us and the Buyer shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law and more particularly the UN Convention on the International Sale of Goods (CISG).

(2) The competent courts for our registered office in Sinsheim, Germany, shall have exclusive jurisdiction for all legal disputes resulting directly or indirectly from the contractual relationship between us and the Buyer. The Seller may, however, also file an action, at his option, before the courts which are competent for the registered office of the Buyer