Terms and Conditions | Quest Kabel

General Terms and Conditions

Quest Cable and System Technology GmbH

§1 General

All delivery transactions, agreements and offers are exclusively based on the following terms and conditions in their respective valid version at the time of the inquiry or order of the customer. Deviating, conflicting or supplementary general terms and conditions of the customer shall not become part of the contract, even if they are known, unless their validity was expressly agreed in writing.

Our General Terms and Conditions of Business shall also apply if we carry out the delivery or service to the customer without reservation in the knowledge that the customer's terms and conditions conflict with or deviate from our terms and conditions. Amendments or supplements to these terms and conditions, collateral agreements as well as deviating agreements must be agreed in writing to be effective.

Our terms and conditions shall also apply to all future transactions with the customer.

§2 Conclusion of contract and contract amendments

Our offers are subject to change and non-binding subject to other sales.

We reserve the right to make technical changes as well as changes in shape, color and/or weight within the scope of what is reasonable. Dimensions, weights, illustrations, drawings/data sheets as well as information and illustrations contained in brochures, catalogs and general information (e.g. website) shall only be binding if this has been expressly agreed in writing.

By ordering goods, the customer makes a binding declaration that he wishes to purchase the goods ordered. We are entitled to accept the contractual offer contained in the order within two weeks of receipt by us. The acceptance can be declared either in writing or by delivery of the goods to the customer.

As a rule, the customer's order must be placed in writing by letter or by fax. It may also be made by electronic data transmission, such as by e-mail, provided that the customer can be clearly identified as the sender on the basis of common standards.

If the order confirmation deviates from the order, its content shall be deemed to be contractually agreed if it is not objected to in writing within 8 days of dispatch. This paragraph shall not apply to business transactions with consumers and other persons who are not merchants within the meaning of the German Commercial Code.

Our offers and order confirmations are always subject to a positive credit check of the customer and subject to correct and timely delivery by our suppliers. The right to dissolve the contract in commercial transactions is limited to the case that we have concluded a specific covering transaction with our supplier and have been let down by the partner of this contract.

We reserve property rights and copyrights to samples, cost estimates, drawings and similar information of a tangible and intangible nature - also in electronic form; they may not be made accessible to third parties. We undertake to make information and documents designated as confidential to the customer available to third parties only with the customer's consent. Upon our request, all our documents shall be returned to us.

The quality of the goods shall be governed exclusively by the agreed technical delivery specifications. If we have to deliver according to drawings, specifications, samples, etc. of our customer, the customer shall assume the risk of suitability for the intended use. Decisive for the contractual condition of the goods is the time of the transfer of risk. In this respect, we shall only be liable for proper processing. Unless expressly agreed, no liability shall be assumed for the determination of the material quality.

We reserve the right to over- or under-deliver by up to 10% for parts that require special production, unless special conditions are agreed beyond this regulation.

Orders with a net value of goods of less than € 100.00 will receive a corresponding surcharge, so that the invoice value of goods excluding value added tax and other ancillary costs (packaging, freight) amounts to € 100.00.

We carry out subcontracted orders conscientiously. If it turns out during production that the supplied input material is not suitable, the costs incurred up to that point shall be borne by the customer. Claims for damages cannot be derived from this on the part of the customer. In the case of order quantities of less than 100 pieces, rejects etc. of 15 to 20% are permissible; over 100 pieces of 10 to 15%, in accordance with the production.

§3 Delivery time

Delivery periods are binding if they are expressly designated as binding by us and confirmed in writing.

The delivery period shall commence with the dispatch of the order confirmation, but not before the customer has provided any documents, approvals and releases that may be required, and not before receipt of any agreed down payment. If technical ambiguities or errors are subsequently discovered in the customer's order or drawing documents, the delivery period shall begin anew after their elimination. All additional expenses incurred by us as a result shall be reimbursed by the customer.

Subsidiary agreements and amendments require our written confirmation.

An agreed delivery period shall be deemed to have been complied with if the goods ordered have left the warehouse or, in the case of shipment ex works, the manufacturer's works, or notification of readiness for shipment has been given by the time the delivery period expires.

Unforeseen, unavoidable events and other hindrances such as force majeure, labor disputes, obstruction of traffic routes, official interventions or other disruptions in our own operations or in the operations of our suppliers as well as delayed deliveries by our suppliers shall entitle us to extend the delivery period by the duration of the hindrance, but not more than a total of four weeks, insofar as such hindrances demonstrably have a significant influence on the manufacture or delivery of the delivery item. We shall inform the customer of the beginning and end of such circumstances as soon as possible.

The delivery date shall be agreed in accordance with our anticipated capacity and shall be subject to unforeseen circumstances and obstacles, irrespective of whether these occur at our premises or at the supplier's premises, such as force majeure, government measures, changes in the law, failure to obtain official permits, industrial disputes of any kind, sabotage, shortage of raw materials, late delivery of materials through no fault of our own. Such events shall extend the delivery date accordingly, even if they occur during a contract that has already been entered into, but not more than a total of four weeks.

Insofar as we are in default and the customer suffers damage as a result, the customer may claim compensation for the delay. This shall amount to 0.5% for each week of delay, but in total not more than 5% of the value of that part of the total delivery which cannot be used on time or in accordance with the contract as a result of the delay.

Insofar as the delays in delivery last longer than six weeks, we shall be entitled to withdraw from the contract in whole or in part if we expressly undertake to inform the customer immediately of the non-availability of the performance and to refund the consideration.

If it has been agreed with the customer that a firmly agreed delivery quantity is to be delivered within a fixed period of time ("completion period") and the customer is entitled to determine the delivery date in each case, the deliveries are to be called off from us no later than twelve weeks before the desired delivery date. After expiry of the completion period, we may deliver and invoice the customer for the quantity not yet called off.

Partial deliveries are permissible insofar as this is not unreasonable for the customer.

§4 Prices / Terms of Payment

Prices in commercial transactions are net prices and are subject to the applicable value added tax. The price calculation and payment are made in Euro (€). Additional costs due to payment in foreign currency shall be borne by the customer.

Unless otherwise agreed, the prices are ex EXW (Incoterms in their current version).

Unless otherwise agreed, the price valid on the day of delivery shall apply. The price increase is limited to the price enforced on the market.

Circumstances which occur four months after conclusion of the contract and which significantly influence the basis of calculation in a manner which is not unforeseeable and which are beyond our control shall entitle us to adjust the agreed price in an amount which exclusively takes these circumstances into account. This applies in particular to changes in the law, official measures, exchange rate fluctuations, etc. The price adjusted in this way shall be based on the same basis of calculation as the originally agreed price and shall not serve to increase profits. The price increase shall be limited to the price enforced on the market. In non-merchant transactions, this shall not apply to goods to be delivered within four months after conclusion of the contract, unless they are delivered within the scope of continuing obligations.

Invoice amounts are generally due immediately. If the customer is in default of payment, he shall pay interest on the debt at a rate of 8% above the prime rate during the default (§§ 288 para. 2, 247 BGB). We reserve the right to claim further damages caused by default.

In principle, unless otherwise agreed, payment shall be made to our account within 30 days of the invoice date without deduction.

We shall be entitled, despite any provisions of the customer to the contrary, to offset payments first against the customer's older debts. If costs and interest have already been incurred as a result of default, we shall be entitled to set off the customer's payments first against the costs, then against the interest and finally against the principal claim.

The customer may only exercise a right of retention if his counterclaim is based on the same contractual relationship. The customer may only assert rights of set-off and retention against undisputed, acknowledged or legally established claims.

Non-compliance with agreed terms of payment as well as circumstances which only become known to us after conclusion of the contract and give rise to fears that the customer will not pay on time shall entitle us to demand immediate provision of security for all claims arising from the delivery contract irrespective of the due date and to stop work on the delivery item until the security has been provided.

In this case, all outstanding claims, including those for which payment by instalments has been agreed, shall become due immediately.

§5 Transfer of risk / Shipping

In commercial transactions, the customer shall bear the price risk as soon as the goods have been handed over to the person designated with the shipment.

If shipment is delayed or becomes impossible through no fault of our own, the risk shall pass to the customer upon notification that the goods are ready for shipment.

Packaging shall become the property of the customer and shall be invoiced by us. Postage and packaging charges will be invoiced separately. The choice of the mode of dispatch shall be made at our best discretion.

The handing over is equal if the buyer is in default of acceptance.

Insurance against transport damage shall be taken out at the request and expense of the customer.

If the customer culpably refuses to accept the goods, he is obliged to pay us damages amounting to 5% of the net order sum. We expressly reserve the right to assert any further claims. The customer is expressly permitted to prove that a lesser damage than claimed has been incurred.

§6 Warranty

The customer is obliged to inspect the goods immediately after delivery for completeness and damage.

If the customer is an entrepreneur and in case of obvious defects a complaint is not made within a period of 3 days after delivery, the goods shall be deemed approved.

If the customer is a consumer and if no complaint is made within a period of two weeks after delivery in the case of obvious defects, the goods shall be deemed to have been approved.

The dispatch of the notice of defect is decisive for the timeliness.

In the case of defects that are not obvious, the period for giving notice of defects shall correspond to the statutory period of limitation.

If the customer is an entrepreneur, the notification of defects must be made in writing by registered mail / advice of receipt.

The notification of a defect shall be addressed exclusively to us.

The customer shall bear the full burden of proof for all claim prerequisites, in particular for the defect itself, for the time of discovery of the defect and for the timeliness of the notice of defect. In non-commercial transactions, this does not apply to defects that become apparent within six months of the transfer of risk.

We shall not be liable for material defects caused by unsuitable or improper use, faulty assembly or commissioning by the customer or third parties, normal use, faulty or negligent handling, nor for the consequences of improper modifications or repair work carried out by the customer or third parties without our consent. The same shall apply to defects which only insignificantly reduce the value or suitability of the goods.

We shall be given the opportunity to determine the defect complained of. Objected delivery items are to be kept at our disposal and are to be returned to us immediately upon request.

Insignificant defects which do not impair the functionality of the delivery item shall not entitle the customer to refuse acceptance.

We shall reimburse the costs of the return shipment only if it is made at our request.

In the case of defects notified in good time, we shall initially provide supplementary performance by rectification or replacement delivery at our reasonable discretion. The customer shall give us a reasonable time and opportunity to do so.

If the subsequent performance fails, the customer may in principle demand a reduction in price or the rescission of the contract (withdrawal) at his discretion. However, in the event of only a minor breach of contract, in particular in the event of only minor defects, the customer shall not be entitled to withdraw from the contract.

If the customer wishes to withdraw from the contract due to a defect of title or material defect after a failed non-fulfillment, he shall not be entitled to any additional claim for damages due to the defect. The customer may then only claim damages in the event of intent or gross negligence or in the event of a breach of an essential contractual obligation (cardinal obligation) on our part, on the part of our legal representatives or vicarious agents, in principle to an unlimited amount; in the event of a breach of the cardinal obligation, however, limited to such foreseeable damages whose occurrence was to be prevented by the cardinal obligation. We shall not be liable for unforeseeable excess risks.

The foregoing limitation shall also expressly not apply if a culpable breach of duty on our part, on the part of our legal representatives or vicarious agents, gives rise to liability for damages arising from injury to life, limb or health.

If the customer desires compensation for damages after failed subsequent performance, the goods shall remain with the customer if this is reasonable for him. In this case, the compensation for damages shall be limited to the difference between the purchase price and the value of the defective item. This does not apply in the case of fraudulent breach of contract.

If, after acceptance of an item under warranty, it turns out that there is no defect, we shall be entitled to charge the customer an expense or processing fee. In this case, the customer shall be at liberty to prove to us that the expenses incurred were lower than those invoiced.

The limitation period for warranty claims is one year for contracts with companies.

In the case of used goods, the limitation period for warranty claims shall also be one year for contracts with consumers.

In the case of other contracts with consumers, the statutory limitation period shall apply, except in the case of claims for damages and claims for futile expenses, for which a limitation period of one year shall apply.

Deadlines, the fruitless expiry of which entitles the customer to withdraw from the contract, reduce the purchase price or claim damages, must be set in writing.

The description of our products and their possible uses in brochures, programs, price lists, instructions for use and similar information does not constitute a guarantee of specific areas of application and properties, but is non-binding information intended to help the purchaser assess our products and their areas of application. In good time before placing the final order, the customer must satisfy himself by means of his own adequate information, professional advice and tests that the result he desires can be achieved with our products under the given conditions.

Claims under the Product Liability Act shall remain unaffected.

The customer does not receive any guarantees in the legal sense from us.

§7 Exclusion and limitation of liability

All other claims for damages of any kind whatsoever, in particular those for culpa in contrahendo or for breach of contractual or statutory collateral duties, may be asserted by the customer only in the event of intent or gross negligence or in the event of breach of a material contractual duty (cardinal duty) on our part, on the part of our legal representatives or vicarious agents, in principle to an unlimited amount; in the event of breach of a cardinal duty, however, limited to such foreseeable damages whose occurrence was to be prevented by the cardinal duty. We shall not be liable for unforeseeable excess risks.

The customer shall bear the burden of proof that the conditions of the breach of duty asserted by him are met. This shall also apply to any fault on our part.

Claims under the Product Liability Act shall remain unaffected.

§8 Retention of title

We retain title to the delivery item until receipt of all payments arising from the business relationship with the customer (reserved goods). The retention of title also extends to the acknowledged balance insofar as we book claims against the customer to current account.

The customer is obliged to treat the goods with care. If maintenance and inspection work is to be carried out, the customer must do this regularly at his own expense.

The customer may only sell the goods subject to retention of title in the ordinary course of business under normal business conditions and only as long as he meets his payment obligations to us on time. For its part, the customer shall be obliged to resell the reserved goods only subject to reservation of title and to ensure that the claim from such sales transactions can be transferred to us.

If the goods subject to retention of title become part of a new item belonging to the customer as a result of combination, it shall be deemed agreed that the customer transfers co-ownership of the new item to us and keeps it for us free of charge. Our share of ownership shall be determined by the ratio of the value of the reserved goods to the value of the new item.

The customer hereby assigns to us all claims arising from the resale of the reserved goods against its customers or against third parties. If the goods subject to retention of title are resold which only belong to us on a pro rata basis, the portion of the claim arising from the resale assigned to us shall be calculated on the basis of our ownership share.

The customer remains revocably authorized to collect the claims from the resale. Upon request, he shall notify his customers of the assignment and provide us with all information and documents that we require to assert our rights.

We undertake to release the securities to which we are entitled insofar as their value exceeds the claims to be secured by more than 50%.

If the goods subject to retention of title are seized or if our rights are impaired in any other way by third parties, the customer shall notify us immediately.

The customer undertakes to adequately insure the goods at his own expense against fire, water, theft and damage by natural forces until expiry of the reservation of title and to provide us with evidence of this. He already now assigns his claims from the insurance contracts to us.

We accept the assignment.

We shall be entitled to withdraw from the contract and demand the return of the goods in the event of any breach of contract by the customer, in particular in the event of default in payment or breach of any obligation under this section. For this case, the customer already now declares his consent to our demanding or having demanded the return of the goods subject to retention of title located at the customer's premises or - insofar as we are the sole owner - the new item within the meaning of paragraph (4) of this section.

Insofar as mandatory legal provisions of the respective country do not provide for a reservation within the meaning of this §8 (1)-(11), but we are aware of other rights to secure claims arising from invoices of the supplier, we reserve these rights. The customer shall be obligated to cooperate in any measures to which we are entitled to protect our title or any other right replacing it in respect of the goods subject to retention of title.

§9 Withdrawal

We may withdraw from the contract if, after the conclusion of the contract, circumstances essential for the execution of the contract have developed beyond our control in such a way that performance becomes impossible or unreasonably difficult for us (e.g. non-delivery by our upstream supplier for which we are not responsible or the possibility of delivery only under substantially more difficult conditions, force majeure, government measures, strike or natural disasters, changes in the law, official measures, non-granting of official permits, labor disputes of any kind, sabotage, shortage of raw materials, delayed delivery of materials through no fault of our own).

We shall also be entitled to rescind the contract if the customer materially breaches contractual obligations, in particular if he can be accused of a breach of duty of care with regard to the handling of the goods delivered under retention of title.

Our right of withdrawal shall also apply in the event that the customer makes false statements regarding his creditworthiness. This shall also apply if the customer is objectively uncreditworthy and our claim for payment appears to be endangered as a result; the same shall apply in the event that the customer has submitted an affidavit.

In all other respects, our right of withdrawal and that of the customer shall be determined in accordance with the statutory provisions.

§10 Final reconciliations

The place of performance for deliveries and services is the destination confirmed by us.

The contractual relationship shall be governed by German law with the exception of the conflict of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods (CIGS).

The place of jurisdiction is Munich, subject to a deviating exclusive place of jurisdiction. However, we are also entitled to sue the customer at another competent court.

Should any provision be or become invalid, this shall not affect the validity of the other provisions.

Transfers of rights and obligations of the customer from the contract concluded with us require our written consent to become effective.

Quest Kabel und Systemtechnik GmbH

Translated from German with DeepL (https://www.deepl.com)

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