(1) The following General Terms and Conditions in the respective version at the time of the order shall apply exclusively to the legal relationship between QTM Service GmbH and the customer. Sufficient for the validity of the General Terms and Conditions is the reference to the retrievability on the Internet, provided that corresponding retrievability is also technically enabled.
(2) Deviating general terms and conditions of the customers are rejected. These shall only become effective if they are expressly confirmed by QTM Service GmbH. Even if QTM Service GmbH accepts a delivery without express objection, it can in no case be inferred from this that the conditions of the contractual partner have been accepted.
(3) These Terms and Conditions of Sale shall also apply to all future business transactions with the Buyer, insofar as legal transactions of a related nature are concerned.
(4) Subsidiary agreements and subsequent amendments shall only be binding after written confirmation by QTM Service GmbH.
§ 2 Offer and conclusion of contract
(1) If an order is to be regarded as an offer in accordance with § 145 BGB, we may accept it within two weeks. The contract shall only be concluded if the customer has received a written acceptance of the offer. Verbal agreements and ancillary agreements shall only be valid if they have been confirmed by us in writing.
(2) Photographs and information from our website are subject to change.
(3) Offers on our part that do not include a deadline for acceptance are non-binding. Offers on our part shall only be made with reference to these General Terms and Conditions. By accepting the offer, the customer also declares his agreement with these General Terms and Conditions.
(4) The same provisions as under § 3 shall apply to the documents handed over with the offer.
§ 3 Documents provided
(1) Documents such as brochures, drawings, descriptions, weight and dimension specifications, cost estimates, illustrations and the like are only approximate unless expressly designated as binding. Deviations do not entitle to complaints or price reductions. In addition, we reserve the right to make changes and improvements to the design and construction, insofar as they are reasonable for the customer, taking into account our interests.
(2) We reserve the property rights and copyrights to all documents provided to the purchaser in connection with the placing of the order, such as calculations, drawings, etc.. The documents are to be treated confidentially by the customer. They may neither be copied nor duplicated nor made accessible to third parties unless we give our express written consent to do so. Insofar as we do not accept the orderer’s offer within the period of § 2 or a corresponding request for return has been made, these documents shall be returned to us without delay, postage paid.
(3) By delivery or examination of construction or installation plans and the like, as well as of other documents, we do not assume any warranty with regard to third-party deliveries or for dimensioning, arrangement or foundation etc. of building constructions.
(4) Prices handed over to us by the customer and marked as confidential by him shall only be made accessible to third parties with his consent.
§ 4 Regulations at the place of destination
The Purchaser shall draw our attention to the statutory, official and other regulations which are to be observed in the performance of the contract. Protective devices shall be supplied insofar as this has been agreed in writing.
§ 5 Prices
(1) Unless otherwise agreed in writing, our prices shall be ex works excluding packaging and plus value added tax at the applicable rate.
(2) All ancillary costs, such as costs for packaging, loading, unloading and reloading outside our works, freight insurance, export, transit, import and other permits as well as notarizations shall be borne by the Purchaser.
(3) If we have included the costs for packaging, freight, insurance and other ancillary costs in our quotation or our delivery price or have shown them separately in the quotation or order confirmation, we reserve the right to make corresponding price adjustments in the event of subsequent changes, if e.g. – sliding prices have been agreed – a delivery deadline is subsequently extended – the scope of the agreed deliveries or services has undergone a change – the material or the design undergoes changes because the documents provided to us by the customer did not correspond to the actual circumstances or were incomplete; these price adjustments shall become due with the corresponding invoice.
§ 6 Terms of payment
(1) Payment of the purchase price shall be made exclusively to our account known to the Purchaser. The deduction of discounts or other cost items such as expenses, taxes and fees is only permissible with a special written agreement.
(2) We shall only accept bills of exchange on account of performance on the basis of a written agreement, whereby all costs shall be borne by the Purchaser.
(3) If partial deliveries are invoiced, payment shall be made in accordance with the agreed terms of payment for each individual delivery.
(4) In case of delivery of spare parts as well as provision of services, payment shall be made immediately net upon receipt of the invoice. In the case of delivery of machines, the terms of payment shall be agreed in accordance with the order confirmation.
(5) The payment dates shall also be observed if transport, delivery, assembly, commissioning or acceptance of the delivery is delayed or becomes impossible for reasons for which we are not responsible.
(6) If the Purchaser is in default of payment, we may – without any special reminder, claim the statutory default interest from the due date, currently 8 percentage points above the base interest rate; we expressly reserve the right to claim further damages and rights – immediately assert all claims arising from this or other transactions with the Purchaser – assert a right of retention with respect to our deliveries or other services.
(7) If an unfavorable financial situation of the customer becomes known before or after dispatch of the delivery, we shall be entitled to demand immediate full payment or sufficient security or, if this demand is not complied with immediately, to claim reimbursement of our expenses and damages while maintaining our claim and to withdraw from the contract.
§ 7 Offsetting and rights of retention
The Purchaser shall only have the right of set-off if its counterclaims have been legally established or are undisputed. The customer shall only be entitled to exercise a right of retention insofar as its counterclaim is based on the same contractual relationship.
§ 8 Delivery time
(1) The commencement of the delivery period stated by us shall be subject to the timely and proper fulfillment of the Purchaser’s obligations. We reserve the right to plead non-performance of the contract.
(2) If the customer is in default of acceptance or culpably violates other duties to cooperate, we shall be entitled to demand a lump-sum compensation for the damage incurred by us in this respect, including any additional expenses. This shall amount to 0.5% for each full week of delay, but not more than 5% of the net value of that part of the total delivery which cannot be delivered or cannot be delivered in accordance with the contract as a result of the delay. We reserve the right to assert further claims. If the above conditions are met, the risk of accidental loss or accidental deterioration of the purchased goods shall pass to the Purchaser at the point in time at which the Purchaser is in default of acceptance or debtor’s delay.
(3) 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 0.5 % of the delivery value, but not more than 5 % of the delivery value. By payment of the lump-sum compensation due to delay in delivery, all further rights of the Purchaser shall be satisfied.
§ 9 Retention of title
(1) We reserve title to the delivered goods until full payment of all claims arising from the delivery contract. This shall also apply 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.
(2) As long as ownership has not yet been transferred to the Purchaser, the Purchaser shall be obliged to treat the object of sale with care. In particular, he shall be obliged to insure it adequately at his own expense against theft, fire and water damage at replacement value. If maintenance and inspection work has to be carried out, the Purchaser shall carry this out in good time at its 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 interventions by third parties. Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action pursuant to § 771 ZPO (German Code of Civil Procedure), the purchaser shall be liable for the loss incurred by us.
(3) The purchaser shall be entitled to resell the reserved goods in the normal course of business. The Purchaser hereby assigns to us the claims of the customer arising from the resale of the goods subject to retention of title in the amount of the final invoice amount agreed with us (including value added tax). This assignment shall apply irrespective of whether the purchased goods have been resold without or after processing. The customer shall remain authorized to collect the claim even after the assignment. Our authority to collect the claim ourselves shall remain unaffected. However, we shall not collect the claim as long as the customer meets his payment obligations from the proceeds collected, 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.
(4) The processing or transformation of the object of sale by the customer shall always be carried out in our name and on our behalf. In this case, the purchaser’s expectant right to the object of sale shall continue to apply to the transformed object. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the objective value of our object of sale to the other processed objects at the time of processing. The same shall apply in the event of mixing. If the mixing takes place in such a way that the item of the customer is to be regarded as the main item, it shall be deemed agreed that the customer transfers co-ownership to us on a pro rata basis and shall keep the sole ownership or co-ownership thus created for us. In order to secure our claims against the purchaser, the purchaser shall also assign to us such claims as accrue to him against a third party as a result of the combination of the reserved goods with real property; we hereby accept this assignment.
(5) Liabilities and claims for damages may not accrue to us as a result of treatment or processing; the treated or processed goods shall serve as our security, in each case to the amount of the price of the goods subject to retention of title invoiced to the Purchaser.
(6) We undertake to release the securities to which we are entitled at the request of the Purchaser insofar as their value exceeds the claims to be secured by more than 20%.
§ 10 Warranty
(1) Warranty rights of the purchaser presuppose that the purchaser has duly fulfilled its obligations to inspect the goods and give notice of defects in accordance with § 377 of the German Commercial Code (HGB).
(2) Claims for defects shall become statute-barred 12 months after delivery of the goods supplied by us to our customer. Our consent must be obtained prior to any return of the goods. If the goods are used goods, the warranty is completely excluded.
(3) If, despite all due care and attention, the delivered goods show a defect which was already present at the time of the transfer of risk, we shall, at our discretion, either repair the goods or deliver replacement goods, subject to timely notification of defects. We shall always be given the opportunity to remedy the defect within a reasonable period of time. Claims under a right of recourse shall remain unaffected by the above provision without restriction.
(4) If the supplementary performance fails, the Purchaser may, without prejudice to any claims for damages, withdraw from the contract or reduce the remuneration.
(5) There shall be no claims based on Defect in cases of insignificant deviations from the agreed quality, of only minor impairment of usefulness, of natural wear and tear and of damage arising after the passing of risk from faulty or negligent handling, excessive strain, unsuitable equipment, defective workmanship, inappropriate foundation soil or from particular external influences not assumed under the contract. If the Purchaser or third parties carry out improper repair work or modifications, there shall also be no claims for defects for these and the resulting consequences.
(6) Claims by the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labor and material costs, shall be excluded insofar as the expenses increase because the goods delivered by us have subsequently been taken to a location other than the customer’s branch office, unless the transfer is in accordance with their intended use.
(7) The Purchaser’s right of recourse against us shall exist only to the extent that the Purchaser has not entered into any agreements with its customer exceeding the statutory mandatory claims for defects. Furthermore, paragraph 6 shall apply mutatis mutandis to the scope of the Purchaser’s right of recourse against the Supplier.
§ 11 Miscellaneous
(1) This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) The place of performance and exclusive place of jurisdiction and for all disputes arising from this contract shall be our registered office, unless otherwise stated in the order confirmation.
(3) All agreements made between the parties for the purpose of executing this contract are set out in writing in this contract.
(4) Should individual provisions of this contract be or become invalid or contain a loophole, this shall not affect the remaining provisions. The parties undertake to replace the invalid provision with a legally permissible provision that comes as close as possible to the economic purpose of the invalid provision or fills this gap.
General Terms and Conditions of Purchase (as of June 2017)