IQS GmbH – General Terms of Sale and Delivery, Effective 04/2013
1 Scope of Application
1.1 All sales, deliveries and services (hereinafter “Services”) of the IQS GmbH (hereinafter “IQS”) are solely subject to the following General Terms of Sale and Delivery (ALB). These ALB are exclusively applicable to companies, legal persons under public law or public separate estate according to §310 Abs.1 BGB (hereinafter „Customer“). Customers’ General Terms and Conditions of Business which deviate from these ALB or from applicable law will not be accepted. They even will not become part of a contract if IQS accepts or executes customer’s orders in awareness of the customer’s opposing or deviating Terms and Conditions of Business.
2 Subject Matter and Scope of Services (Offers, Samples, Documents, Guarantees, Contract closing)
2.1 All offers / quotations of IQS shall be non-binding unless they have been specified as binding in writing. They shall be regarded as a request to submit a quotation. Contracts between IQS and the customer only become effective by written and issued order confirmation or delivery of the goods ordered or performance of the service ordered, performed by IQS. In general IQS shall be under no obligation to verify customers information provided to submit a quotation / offer or order confirmation to the customer. IQS shall also not be obligated to investigate if the execution of the customer’s order based on such information infringes any third-parties property rights.
2.2 Information and data provided in data sheets, web pages and other promotional and information material of IQS shall be deemed for guidance only and only become a binding part of the contract if IQS expressly agreed to them in written form.
2.3 The properties of specimens and samples are only binding if this was expressly agreed in written. Information on texture and consistency of IQS products and services are only deemed as guarantees if they are expressly stated and agreed in written.
2.4 Unless otherwise stated and agreed in writing, IQS will deliver products within the tolerances admissible under the relevant German or European technical standards, in particular DIN, VDE, EN ISO or similar standards.
2.5 Technical and technological changes which are required for manufacturing reasons, or which are necessary due to legislative changes, shall be admissible as long as they are reasonable for the customer.
2.6 All ideas and documents generated by IQS, in particular samples, dummies, sketches and drawings, designs, technical information, etc. shall be subject to the protection of the intellectual property of IQS and may not be used or exploited in any form without our consent unless these products were manufactured exclusively on the basis of the customer’s information and specifications. Upon written request all IQS-generated documents shall be returned to IQS.
3 Delivery, Delivery time, Packaging and Passing of risk
3.1 Type and scope of IQS’s services are determined in the written and issued order confirmation. IQS shall be entitled to partial deliveries as long as it is reasonable for the customer. In case the customer wishes partial delivery quantities of an agreed total quantity (General supply agreement), the customer shall split these partial delivery quantities evenly over the agreed delivery period.
Partial delivery calls comprising 30% or more above the agreed partial delivery quantity on one time are subject to prior written consent of IQS.
3.2 The delivery period only starts after all issues necessary for IQS to perform the order have been clarified with the customer and the customer has performed all necessary acts which are required for IQS to perform customers order. The delivery period will be interrupted by any customer induced changes on the subject of the contract. After an agreement about the desired changes has been achieved, the delivery period recommences to run.
3.3 In cases of forces majeure, our lead times and delivery dates shall be extended by the duration of the problem which has occurred. These shall include circumstances which occur but for which IQS is not responsible such as war, re-damage, strikes, lock-outs, traffic problems, official orders, plant shut-downs or major operating problems such as lack of material or energy suffered by us and our sub-contractors and suppliers. This shall apply even if IQS was already in default when these circumstances occurred.
3.4 Products and services of IQS are generally provided to be dispatched unpacked. If the customer desires packaging for the products and services, these costs will be extra charged to the customer.
3.5 If the Customer fails to accept the services by the agreed delivery date or lead time for reasons that are its responsibility, the risk shall pass to the customer upon receipt of notification that the services of IQS are ready to be shipped. IQS may demand compensation for any additional costs that IQS incur as a result of reasons within customers responsibility. Upon written request of the customer IQS will insure these services against theft and damage from breakage, transport, fire and water at customers costs.
4 Prices, Terms of Payment, Default
4.1 Unless otherwise agreed, all prices shall be understood in euros, net on an “ex-works” basis (Incoterms 2010), exclusive of statutory value-added tax at the rate in force on the date of the invoice. Additional costs such as packaging, freight, shipment costs, customs duties, assembly, insurance and bank charges shall be charged separately.
4.2 Invoices are due for payment within 10 days upon receipt and without any deductions.
4.3 If the customer is in default of payment IQS shall be entitled to charge normal bank interests but at least at a rate of 8 percentage points per annum above the relevant base rate and to withhold further goods and services until all outstanding invoices have been settled. IQS reserves the right to provide evidence that IQS suffers from higher damages thereof. Unless a fixed price agreement has been made, IQS reserves the right to change prices for customers’ orders due to changes in labor-, material- and distribution costs for deliveries made 3 months or later after conclusion of the contract.
4.4 IQS shall not be deemed to be in delay and shall be exempted from the performance of the contract as long as the customer does not meet his obligations as agreed (in particular payment of due invoices from other agreements and contracts with IQS
4.5 The Customer shall only be entitled to set off against our claims if its counter-claim is undisputed or has been fixed by a court of law. The assignment of debts payable to us shall require our consent.
4.6 If the customer is in default of payment or if there are circumstances which, when applying customary banking standards, justify doubts about the customer’s ability to pay, IQS will be entitled to perform outstanding services only against payment in advance or subject to the provision of a security. In such case, IQS will be permitted to declare all of its claims against the customer immediately due for payment, irrespective of the term of any bills of exchange, and demand securities.
4.7 Subject to evidence of a higher damage, IQS will charge 5,-€ for each reasonable reminder sent to the customer.
4.8 If, despite a reasonable time limit, a service which is ready for acceptance is not fully accepted or is accepted too late through no fault of IQS, IQS will store the products at customer’s cost and risk. For such storage IQS will charge 1% of the invoice amount (net) for each month of the delay in acceptance.
5 Warranty, Duties of the customer regarding claims for defects, Liability and Damages
5.1 The Customer is engaged to inspect the goods and services from IQS immediately after delivery in accordance with § 377 of the Commercial Code and to notify IQS of any defects and damage identified during this inspection or at a later date without delay after their discovery.
5.2 Slight deviations from the agreed or standard quality do not constitute a defect in a product or service since they have to be seen negligible in a technical or technological sense. They do not constitute a defect of the product or the service. General information on the use of a product or examples for the application of a product given by IQS in product brochures, Websites or other advertising media do not release the customer from a careful inspection of the delivered product for its suitability for the customer’s particular purpose of use. Special customer requests regarding the particular use of a product shall only be authoritative if IQS has confirmed to the customer in writing at the time of conclusion of the contract that the product delivered is suitable for the customer’s intended purpose of use.
5.2 The customer shall notify IQS without delay about all claims for defects which relate to services of IQS, otherwise the customer’s claims for defects against IQS will be excluded. In addition, the customer shall preserve evidences in a suitable form and provide such evidences to IQS if requested.
IQS shall be entitled to investigate the notified defects. Therefore IQS may reclaim a product or service from the customer for such investigation. If the customer does not comply with such reasonable request, customer’s claims for defects or incompleteness of services will forfeit.
5.3 For defects in a product or service of IQS that are indisputable, IQS shall have the choice of subsequent performance by remedy of the defects or delivery of a fault free product. Claims by the Customer relating to the costs required for the purposes of repeat fulfillment, in particular transport, travelling, labour and material costs shall not be permitted if these costs are increased because the goods were subsequently transport to a place other than the Customer’s site. The customer will be entitled to cancel the contract or to reduce the purchase price in accordance with the statutory provisions only if the subsequent performance by IQS has failed twice or is unreasonable and the defect complained of is not merely a minor defect.
5.4 For defects to products or services of IQS, caused by improper use, modification, assembly, installation and/or operation of the products or service, or by defective instructions of the customer, and not by a fault on the part of IQS, the compensation of any loss or damage is excluded.
5.5 Any claims for material defects and defects of title against IQS become barred by the statute of limitations after twelve (12) months from the passing of the risk. Only in case of a culpable injury to the life, body or health of any person, for claims under the German Product Liability Act, and for other willful or grossly negligent breaches of duty by IQS, unlimited liability will be assumed by IQS.
5.6 In the event of simple negligence IQS shall only accept liability in the event of a breach of a major contract duty. For gross negligence IQS shall also accept liability for breaches of non-major contract duties. In the above cases liability shall be limited to the foreseeable damages which are typical for these contracts. In the event of assured properties, IQS’s liability shall be limited to the scope and the amount of IQS’s product liability insurance policy.
5.7 IQS shall accept liability for tortuous claims on the basis of contract liability. All liability other than that described in the provisions above shall be excluded.
5.8 Recourse claims on the part of the customer against IQS shall only exist as long as the customer has not made any agreements with its clients which go beyond the statutory defect and compensation claims. IQS’s liability shall be excluded if the customer has effectively limited its liability to its own clients.
5.9 If the liability of IQS is excluded or limited, this shall also apply to the personal liability of IQS’s staff, workers, colleagues, representatives, agents and vicarious agents. If liability is excluded or limited under the provisions set out above, the customer also undertakes to indemnify IQS from claims by third parties when first requested to do so.
6 Procurement and reservation of title, seizure right
6.1 IQS reserves title to all contract goods until all IQS’s claims from the business relationship with the customer have been settled in full.
6.2 If property of IQS is processed, connected or mixed with property owned by others, IQS shall acquire title to the new item as set out in § 947 of the Civil Code.
6.3 If the processing, connections or mixing was processed in such a way that the third party property is regarded as the main item, IQS shall acquire title as a proportion of the value of IQS’s goods or services to the other goods or services at the time of the processing, connection or mixing.
6.4 The customer undertakes to keep the reservation of title goods and services safely and, if necessary, to complete any servicing and maintenance work at its expense promptly. The customer must insure the reservation of title goods and services at its own expense against loss and damage. Any security claims accrued in the event of damage must be assigned to IQS.
The customer shall be entitled to resell the item which is our (joint) property as part of its normal business as long as it fulfills its duties from its business relationship with IQS. In this event a proportion of the claim resulting from the sale shall be assigned to IQS to cover the value of the reservation of title goods or services provided by IQS to the total value of the sold goods. The customer shall retain entitlement to collect this claim even after this assignment. IQS’s authority to collect these claim themselves shall not be affected.
6.5 The right on the part of the customer to dispose of the goods or services subject to IQS’s reservation of title and to collect the claims assigned to IQS shall become null and void as soon as the customer fails to meet its payment duties or an application is made to open insolvency proceedings against its assets. In the above cases and in the event of any other action by the customer in breach of the contract, IQS shall be entitled to take back any goods supplied with reservation of title without notice.
6.6 The customer shall notify IQS without delay if there are any risks to IQS’s reservation of title goods or services, particularly in the event of insolvency and enforcement action. At IQS’s written request the customer must provide all the required information about the whereabouts of the goods and services which are IQS’s (joint) property and about the claims assigned to IQS and must notify its claims of said assignment. The customer shall provide IQS with support in all action required to protect IQS’s (joint) property and shall pay the costs of any such action.
6.7 IQS shall be entitled to have the right of seizure for all goods and services which are in the customer’s possession due to the contract to cover all of IQS’s claims from the contract. This right of seizure may also be claimed for earlier claims from goods or services supplied earlier if they are linked to the goods or services in question. The right of lien shall apply to other claims from IQS’s business relationship as long as they are undisputed or have been fixed by a court of law. §§ 1204 ff. of the Civil Code and § 50 Para. 1 of the Insolvency Regulation shall apply as and where appropriate.
6.8 If the realizable value of the securities exceeds out claims by more than 15%, IQS shall release securities covering the excess value at IQS’s discretion at the request of the customer.
7.1 If special tools are required to perform the order, unless otherwise agreed IQS shall become and remain the order of the tools manufactured by IQS or by a third party even if the customer has paid part of the costs of the tools.
7.2 If expressly agreed, the tools shall only be used for the performance of orders placed by the customer as long as the customer meets its payment and acceptance undertakings. IQS shall only be obliged to maintain and replace these tools free of charge if such action is required to fulfill a production quantity which has been guaranteed to the customer. An undertaking to store the tools shall expire two years after the last delivery of parts made using the tools and after prior notification to the customer.
7.3 The share of the tool costs shall be shown by IQS separately in the quotation, order conformation and invoice.
7.4 If it has been agreed that the customer will become the owner of the tools, title to them shall pass to the customer after the purchase price for the tools has been paid. The handover of the tools to the customer shall be replaced by IQS’s duty of safekeeping for the tools. Regardless of the statutory claim for the tools to be handed over to it and of the service life of the tools, IQS shall be entitled to maintain sole possession of the tools until the acceptance of an agreed minimum quantity by the customer or until after the elapse of a certain period of time. IQS shall mark the tools as the property of a third party and insure them at the request of the Customer and at its expenses.
7.5 If the customer’s own tools as described in § 7.4 are used or if the customer provides the tools on a loan basis, IQS’s liability relating to the safekeeping and care of the tools shall be limited to the same duty of care as would apply if IQS owned the tools. The costs of maintenance and insurance shall be paid by the Customer. The obligations of IQS as set out in this § 7 shall become null and void if, after the completion of the order, a written request is sent to the customer to collect the tools and the customer fails to collect them within 14 days after this request is made.
7.6 If the customer fails to meet his contract obligations in full IQS shall be entitled to exercise a right of retention to the tools.
8 Place of jurisdiction and applicable law
8.1 The place of jurisdiction shall be – at our choice – either the place of the registered office of IQS or the customer’s place of jurisdiction.
8.2 The laws of the Federal Republic of Germany shall be exclusively applicable to the business relationships with the customer. The applicability of the CISG “United Nations Convention on Contracts for the International Sale of Goods” shall be excluded.
8.3 If individual parts of these General Terms of Sale and Delivery (ALB) are invalid, this shall not affect the validity of the other provisions. The parties to the contract shall make every effort to replace the invalid provision with another provision which comes as close as possible to the commercial aim and legal sense of the original formulation and complies with the relevant statutory regulation.
8.4 The contract language shall be German.
9 Data processing
9.1 The customer agrees that IQS may use the data they receive about the customer in relation to this business relationship for the fulfillment of IQS’s own business purposes, in particularly IQS may store them or forward them to a credit agency as long as this is done in order to fulfill the objectives of this contract or it is necessary to protect the justified interests of IQS and there are no reasons to assume that the customer‘s interests in protecting itself and preventing such processing, in particularly the forwarding of these data, outweigh these needs.