general terms and conditions of sale and delivery
MS SAFETY GmbH
Managing director: Martin Schührer
§ 1 General Provisions - Scope of Application
1. These conditions of sale and delivery apply to all current and future business relations with the customers. End users within the meaning of these General Terms and Conditions of Sale and Delivery are natural persons that enter into the business relations with our company without exercising a commercial or independent professional activity. Resellers within the meaning of these General Terms and Conditions of Sale and Delivery are natural or legal persons or partnerships with a legal personality that enter into the business relations with our company and act whilst exercising a commercial or independent professional activity. Customers within the meaning of these General Terms and Conditions of Sale and Delivery are both end users as well as resellers.
2. No divergent, contrary or supplementary General Terms and Conditions of the customer shall apply, even if we were informed about them, unless specifically accepted by the proprietor in writing.
§ 2 Conclusion of the Contract, Transfer of Risk, etc.
1. Our offers are not binding. We can make construction and form related modifications as well as color and/or weight related modifications in so far as these modifications are not fundamental and only insignificantly limit the contractually stipulated purpose.
2. By placing an order of any goods the customer makes a binding declaration, of willingness to purchase the ordered goods. The customer’s order shall be considered placed if MS SAFETY GmbH confirms it in writing or by fax. Immediately performed delivery can replace the written confirmation.
3. The contract shall be concluded subject to the proviso of the correct and timely self-delivery by our component suppliers. This applies only in the event that we are not responsible for the non-delivery, in particular upon the conclusion of a congruent covering transaction with our component supplier. The customer shall be immediately informed of the non-availability of the performance. The counter-performance shall be immediately reimbursed.
4. Dates and terms of delivery will be without commitment. Fixed delivery times shall not be agreed upon. No contractual penalties or any other damage claims shall be accepted in the event of delayed delivery.
5. If a customer sends an order via e-mail or internet, we shall immediately send an e-mail confirmation of the reception of order as well as the text of our sales contract and, if requested, the present General Terms and Conditions of Sale and Delivery. Confirmation stating that the order has been received is not equivalent to the binding acceptance of order. The reception confirmation can, however, be joined with the order acceptance declaration .
6. Quality assurance of the products is the part of the contract only if it has been expressly specified as binding in writing. In principle, we do not certify any quality assurance, unless it has been expressly specified as binding in writing. There is no prospectus liability, unless it has been expressly specified as binding in writing. Drawings and illustrations are to be regarded as approximate information.
7. All additional agreements by the parties to the contract are binding only if made in writing. Verbal subsidiary agreements only become legally effective if confirmed in writing.
8. Dispatch shall be made by package handling companies, such as DPD, UPS or DHL. In case of larger deliveries dispatch shall be made by a forwarding agency of our choice. In the event that the customer prescribes to us a certain mode of dispatch by a different forwarding agency or a package handling agency, risk shall pass to the customer as soon as the goods have been handed over to the forwarding agent. Dispatch as well as sales returns by a carrier shall occur at the customer’s risk. The place of performance is our registered office. The risk of the chance loss or the chance deterioration of the goods shall be transferred to the end users upon the item being handed over, also in the event of a sale by delivery to a place other than the place of performance. The risk of the chance loss or the chance deterioration of the goods shall be transferred to the reseller upon the item being handed over, in the event of a sale by delivery to a place other than the place of performance upon the delivery to the freight forwarding agent, the carrier or the person or institution that is otherwise commissioned with the execution of the shipment. If the customer is in default of acceptance this is equivalent to delivery.
§ 3 Prices
1. MS SAFETY GmbH shall be bound to the prices mentioned in the current version of our price list. All prices are quoted in euros, excluding packaging and shipping charges. Statutory VAT is not included within our prices. It should be stated separately in the invoice according to the statutory rate on the day of invoicing. The same applies to any other statutory delivery charges.
2. In case of works contracts, uniform price contracts shall be concluded, unless specifically otherwise agreed in writing . The burden of proof for the lump sum price agreements is incumbent on the customer. When concluding the contract the customer agrees to accept as adequate local hourly wages.
§ 4 Retention of Title etc.
1. In case of contracts with end users, title to products shall not pass from us to them until payment in full of the purchase price. In case of contracts with resellers, title to products shall not pass from us to them until payment in full of all debts owed by them, as far as the current business relation is concerned. The customer is obliged, to treat the delivery item with care. If servicing and inspection work is necessary the ordering party shall carry out this work in good time at its own expense.
2. The customer is obliged to immediately inform us in the event of attachments of property or other intervention by third parties, such as damage or destruction of products, which can occur in this case. We demand that the customer immediately notifies us of the account receivables and his change of domicile.
3. If the customer defaults in payment or culpably fails to perform other significant contractual obligations according to item 1 page 2 and item 2 of the present regulations as well as in case of doubt about his creditworthiness, which should be proved by the customer (by means of e.g. bank guarantee in accordance with § 108 of the German Code of Civil Procedure: ZPO, Zivilprozessordnung), if requested by our company, we shall be entitled to cancel the contract and to take back the goods supplied under retention of title. In case of work at the industrial plant or installation, we retain the right to exercise the Industrial Plants Right of Lien (Werkunternehmerpfandrecht) as well as to refuse our service until all our claims based on the contract have been settled completely. Execution time shall be accordingly prolonged.
4. The reseller is entitled to resell the delivery items. However, he shall now already assign all the accounts receivables of the sum of the final invoice amount of our accounts receivable, which are accrued by him from the resale vis-à-vis third parties. We accept the assignment. The dealer remains empowered to collect these accounts receivable even following the assignment. We reserve the right to collect the accounts receivable ourselves, if the dealer does not meet his payment obligations from the collected proceeds or is in default of payment. The dealer shall keep records of the name and address of the third party (his purchaser) and is constantly to be ready to communicate this information to us, if requested. It also maintains the quality management agreement. Data Protection Law shall be observed.
5. If the value of the securities that can be realised of our securities exceeds the accounts receivables by more than 20%, the purchaser is obliged to the reverse transfer or to the release. As value is to be considered, if we do not prove the lower viable value of the goods supplied under retention of title, the purchase price of the buyer or in the event of the processing of the conditional commodity the manufacturing cost of the collateral security good or the proportion of joint ownership, respectively minus the permissible valuation reduction in value of a maximum 45% of the accounts receivable to be secured (20% reduction in value, 4% § 171 I of the Insolvency Order (Ins0), 5% § 171 II of the Insolvency Order (Ins0) and 19% of turnover tax) due to the possible deficiencies in proceeds. All open claims resulting from our business relation with the customer have been settled in full, the title of the goods delivered as well as the claims assigned shall pass on to the customer.
6. If the goods supplied under retention of title are processed or reworked to new ones by the customer, processing or reworking shall always occur on our behalf as the manufacturer, without obligating our company; the new goods shall be our property. If the goods supplied under retention of title are processed or combined with other goods, we shall always acquire co-ownership to the new object in proportion of the value of the goods supplied under retention of title to the value of the other goods in case of processing. If, in accordance with §§ 947, 948 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), the goods supplied under retention of title are combined, mingled or mixed with the goods we do not own, in this case we become their co-owner in accordance with the above-mentioned law provisions. In the event of the acquisition by the customer of the sole proprietorship of the goods which result from combination, mingling or mixing of the goods we do not own, with the goods supplied under retention of title, the customer will immediately pass on to us the co-ownership of these goods in proportion of the value of the goods supplied under retention of title to the value of the other goods at the moment of their combination, mingling or mixing. In this event the customer shall treat carefully and maintain the goods subject to reservation of title or those of which we have the co-ownership in the sense of these regulations.
§ 5 Right to Revocation and Right of Return
1. If the revocation is justified by legal regulations, that is in case of door-to-door or catalogue selling, an end user will have the right, to revoke his Declaration of Intent to Conclude a Contract during the period of up to two weeks after delivery of a product. The revocation need not be complemented by statements of reasons and must be done in text-form, or through returning of products. The right to revocation will be treated as exercised on the date of posting to Company MS SAFETY GmbH, Managing director: Martin Schührer, Gutenbergstrasse 3, 69254 Malsch, Germany.
2. If exercising the right to revocation, an end user is required to return a product by sending it by post, if a product can be sent in a form of a parcel. The end user has to bear the costs of returning the products, unless his order has a value of more than € 40. Where wrong products have been delivered to the customer, he is not to bear the costs of returning the products regardless of the value of his order. In case the customer’s order has a value of more than € 40, he is not to bear the costs of returning the products. The parcel with returned products must be sufficiently prepaid. The products must not be damaged or used and returned in original packing to the return address. The products must be sent back with a legible specification of product name, purchase date and invoice number. If the products have already been paid for, MS Solution shall refund the payment by bank remittance to the bank account specified by the purchaser.
3. The end user has to pay compensation for use or causing deterioration of the products. The consumer shall be entitled to inspect the products carefully. The loss of value caused through the use of the products, which cannot be regarded as a pure inspection, which leads to the fact that the products cannot be sold as "new" any more, has to be born by the consumer.
§ 6 Terms of Payment
1. The purchase price and corresponding hourly wages shall be paid prior to delivery. They shall be at the latest due upon receipt of the invoice or of the goods. The invoice can be also sent to the customer by fax or e-mail. The customer shall render the payment of purchase price and additional shipping charges by way of bank remittance of the advance payment. Payment by cheque and credit card are inadmissible. We hereby reserve the right to disallow some payment options. In any case advance payment shall be applicable. By way of exception, the customer may be also allowed – if specified in writing – to pay the purchase price by cash on delivery or cash if collecting the goods. In the event of advance payment invoices are valid after being balanced, and if, by way of exception, it was not agreed upon, at the latest within 30 days of the date of the invoice, unless otherwise declared in writing.
2. In the event of a delay in payment, the reseller will be charged default interest at a rate of 12,5 % p.a., the end user will be charged default interest at a rate of 5 % p.a. above the base interest rate of the European Central Bank. We hereby reserve the right to assert additional damage due to default. The end user is in default of the purchase price payment at the latest – unless he has not received the reminder, which indicates the delay - if he did not balance the invoice within 30 days after its receipt and maturity. The reseller is in default of the purchase price payment at the latest, within 10 days after the receipt and maturity of the invoice or counter-performance.
3. If we have no possibility to conclude the commercial credit insurance for the customer or the insurance cover is extinguished due to reasons beyond our responsibility, in this case the advance payment is considered to be agreed upon, even if a different payment method was previously specified. The burden of proof for his creditworthiness and his solvency is incumbent on the customer. In accordance with §108 of the German Code of Civil Procedure (ZPO, Zivilprozessordnung), the customer can prove it anytime through handing over of a bank guarantee for the amount of the according purchase price or of his total commitment respectively. No stipulation or obligation is caused to us by it. In case of delay of payment or in case of doubt of the purchaser’s solvency, his creditworthiness as well as his essential asset deterioration or due to any other reasons, which could endanger our claim for payment , we are entitled to immediately make our claims due and payable – regardless of our other rights - and, moreover, demand the advance payment and good-faith deposit. The burden of proof for the absence of the asset deterioration is incumbent on the customer. (See above)
The same is effective if the customer does not fulfill his obligations to deliver information and documents after being asked by us to do so.
4. Counterbalancing is only admissible with undisputed and legally effective counterclaims or counterclaims accepted by our company. The customer has also no right to retention based on disputed counterclaims or counterclaims from other contractual relations. The transfer of any demands or claims against us to the third parties is excluded, if not agreed to by our company explicitly in writing. Our company is obliged to agree to the transfer of demands or claims only in case if the customer can prove a legitimate interest to it.
5. MS SAFETY GmbH reserves the right to refuse the delivery, as long as the purchaser ceases to meet payment obligations of previous deliveries or other services of MS SAFETY GmbH.
§ 7 Warranty and Cancellation of Contract
1. The warranty period for new products is two (2) years and for used product one (1) year. It commences on the date the item being handed over to the purchaser. For the resellers, the warranty period for new products is one (1) year from the date the item being handed over to the buyer.
2. The customer is responsible for checking products upon delivery from MS SAFETY GmbH. Defects in products or any other failures must be notified to MS Solution in writing within ten (10) days at the latest of receipt of the products. The defective goods should be delivered to MS SAFETY GmbH with a precise description of the defect claimed. If the reseller fails to notify our company in writing about defects in products, the delivery is deemed to be approved in this respect, unless there are hidden defects, i.e. defects which cannot be determined immediately , even with careful inspection. In accordance with § 377 of German Commercial Code (HGB, Handelsgesetzbuch), notice of hidden defects must be given immediately after their detection, otherwise the delivery is deemed to be approved in this respect.
3. A guarantee provided to the resellers is based on our choice by means of subsequent improvement or remanufacture for defects in the goods. The warranty rights of the consumer require that he meets his obligations to immediately provide notification if a guarantee should be provided, by means of subsequent improvement or remanufacture for defects in the goods. We reserve the right to refuse to rectify the defect in a manner requested by a customer, if subsequent performance is connected with unreasonable expenses and the other way of subsequent performance is without considerable disadvantages for the consumer. The quality assurance to dealers is exemplified in a product description of the manufacturer. Free verbal consultation, manufacturer’s publicity or boosting of the certain features of the goods are not contractually binding. After repair or replacement is ultimately unsuccessful, the customer is entitled to claim, according to his choice, reduction of remuneration (abatement), withdrawal from the contract (resignation) or damage claim instead of the performance. If the customer chooses damage claim instead of the performance, the foregoing limitations of liability shall apply. The customer shall not be entitled to withdraw from the contract due to slight defects in quality. The burden of proof for all the damage claims, especially for the damage itself, for the time point of its discovery and for the timely notice of defect is incumbent on the reseller.
4. In cases of the reception of an incorrect assembly manual by the customer, and only if the product has not been assembled correctly, our obligations shall be limited to supply of a correct assembly manual.
5. The customer shall not receive guarantees in the legal sense by us, our employees or people employed by us in the performance of our obligations. Product liability on our part shall remain unaffected by this clause. Assured qualities must be confirmed in writing as such. A reference to the DIN-Norms must be regarded as approximate information about products and does not constitute a quality assurance unless expressly specified as binding in writing.
§ 8 Liability Limitation
1. In the event of slightly negligent violations of obligations our liability is restricted to the immediate average damage that is typical for the contract and foreseeable based on the type of work. This also applies in the event of slightly negligent violations of obligations of our statutory representatives or our vicarious agents. We are not liable to resellers in the event of slightly negligent violations of obligations. The aforementioned restrictions of liability do not affect the customer’s product liability claims. In addition, the restrictions on liability do not apply in the case of a bodily injury and an injury to health that can be attributed to us or in the event of the death of the customer that can be attributed to us.
2. We assume no responsibility for the contents of any other websites to which this website has links. We do not adopt the content of any other websites. If we take note of the illegal content of any external websites, we shall immediately block the access to these sites. We shall be extricated by the customer from any liability for intentional or negligent damages caused by him to the third party.
§ 9 Data Protection
The customer has been informed in detail about the manner, extent, place and purpose of the collection, processing and use of his personal data necessary for the processing of orders as well as about his right to opposition against the use of his anonymous user profile for the purpose of publicity, market research and demand oriented design of our service (see ”Data Protection Information“). The customer specifically agrees to the collection, processing and usage of his personal data. He is entitled to immediate revocation of his consent effective in the future (here: see “Legal Data Protection Certificate of Compliance“).
§ 10 Miscellaneous
1. The validity and performance of these Conditions shall be governed by German law with the exclusion of the UN Convention on Contract for the International Sale of Goods.
2. To the extent that the customer is a merchant, public law entity or public special fund, the parties submit to the exclusive jurisdiction of the Courts in our registered office in Malsch in the event of legal proceedings arising from any dispute. This also applies if the customer does not have a general place of performance in Germany or the place of abode or habitual abode of the customer is not known at the point in time of the bringing of an action.
3. If one or more provisions of the contract with the customer, these General Terms and Conditions of Sale and Delivery included, prove to be wholly or partly ineffective or invalid, this does not affect the effectiveness and validity of the remaining provisions of the contract. The parties to the contract will replace the ineffective or invalid provision by an effective or valid provision, which most closely approximates the legal and financial object of that which has to be replaced.
4. The present General Terms and Conditions of Sale and Delivery in English are a translation of their original German version. In case of litigation only the German version shall apply.
Malsch 27.06.2011 – MS SAFETY GmbH, Managing director: Martin Schührer www.ms-safety.com