General Terms & Conditions

General Terms & Conditions of MSB GmbH

(Conditions of sale and delivery)

§ 1 General information, scope
(1) Our conditions of sale apply exclusively; we do not accept conflicting terms or any of the customer’s conditions that deviate from our conditions of sale, unless we have expressly agreed to their validity in writing. Our conditions of sale shall also apply in the event that 
we perform deliveries to the customer without reservation and in full knowledge that the customer’s terms and conditions contradict or deviate from our own conditions of sale and delivery.
(2) Our conditions of sale only apply to entrepreneurs within the meaning of § 310 (1) German Civil Code (BGB).
(3) Our conditions of sale also apply to all future transactions with the customer.

§ 2 Quotation and conclusion of contract, quotation documents, delivery and/or performance object
(1) Our quotations are always non-binding. Contracts are only concluded on the basis of our written order confirmation. Ancillary agreements, changes or additions to supply contracts as well as all other agreements – in particular verbal agreements – concluded either with 
us or our representatives before or during conclusion of the contract, must be confirmed in writing in order to be valid.
(2) We reserve ownership and copyrights over the samples, images, drawings and other documents associated with our quotations. This also applies to written documents that are designated as “confidential” – their disclosure to third parties requires our express prior written consent. If no contract is concluded, all documents shall be returned to 
us immediately.
(3) All information contained in our quotations or order confirmations for the delivery 
or performance object (e.g., references to DIN standards and other technical regulations, dimensions, weights, tolerances, load capacities, and other technical data), as well as any representations (e.g., drawings or illustrations ) in our quotation or order confirmation documents, should always be regarded as approximate. They expressly do not constitute any guarantee or assurance with regard to the properties or existence of certain characteristics 
of the delivery or performance object, and are instead merely descriptions or designations 
of the goods.

§ 3 Prices, payment terms, loss of assets, set-off, right of retention
(1) Our prices are in EUR “ex works D-88097 Eriskirch”, excluding packaging. Our prices 
do not include statutory VAT; this is shown separately on our invoice at the applicable rate 
on the day of invoicing.
(2) Unless otherwise stated in our written order confirmation, the purchase price is due upon receipt of our invoice and within 30 days from the invoice date without deduction, irrespective of the actual date of receipt of the goods by the customer. The statutory provisions governing the consequences of default of payment shall apply. In the case of cash payment or payment within 14 days of the invoice date (the day on which the money 
is received in our account), we shall grant the agreed discount deductions indicated on the front of our invoices, unless the customer is in arrears with the payment of other claims. Separately calculated freight and packaging costs are not subject to discounts.
(3) After conclusion of the contract, should we become aware of circumstances which may jeopardize the customer’s solvency or creditworthiness – and which in turn may jeopardize our claim to payment – we shall be entitled to refuse to fulfill our delivery obligations until the consideration (payment) or adequate security has been received for the goods in question.

(4) The customer is only entitled to set-off rights if its counterclaims are legally binding, undisputed or acknowledged by us. In addition, the customer is entitled to exercise a right 
of retention to the extent that its counterclaim is based on the same contractual relationship and the counterclaim is undisputed or legally binding.

§ 4 Delivery time/period, delayed delivery, partial deliveries. We specify delivery times in the final order confirmation. However, the beginning of the delivery period specified in the order confirmation is based on the assumption that the customer has fulfilled its own obligations.
(1) In the case of delayed delivery, the statutory provisions shall apply. We will promptly notify the customer of delays in delivery due to force majeure or other reasons beyond our control (e.g., malfunctions, strikes, lockouts, official orders), as well as a new, estimated delivery time, which may itself be postponed for the duration of the hindrance. Delivery delays for which we are not responsible shall not result in delivery default. Where, due to the aforementioned events, the execution of the order becomes unreasonable for one of the parties, said party shall be entitled to declare its withdrawal from the contract via immediate written notification.
(2) We are entitled to perform partial deliveries to an extent that is reasonable for our customer.

§ 5 Transfer of risk
(1) Unless otherwise stated in our written order confirmation, delivery is agreed 
“ex works D-88097 Eriskirch”.
((2) The transfer of risk to the customer takes place in each case upon handover of the delivery object to the forwarding agent or carrier, regardless of whether freight-paid delivery or similar was agreed. If the goods are collected by the customer or a third party commissioned by the customer, all risk passes to the customer upon handover of the delivery object to the customer or its commissioned third party.

§ 6 Liability for defects
(1) Warranty claims submitted by the customer shall only be accepted if the latter has duly fulfilled its obligations under § 377 of the German Commercial Code (HGB) with regard 
to examining the goods and registering complaints. The customer must immediately notify 
us in writing of any obvious or identified defects and must simultaneously interrupt/terminate any processing of the affected goods. Failure to do so shall invalidate the customer’s warranty claims. Warranty claims shall also expire if the customer denies us the opportunity to examine the defect, in particular if the customer fails to provide the rejected goods or samples thereof promptly at our request.
(2) To the extent that defects are present, we shall be entitled either to remedy the defect 
or deliver fault-free goods (supplementary performance), whereby we shall be entitled to choose the type of supplementary performance. We shall only accept liability in the case 
of a significant defect. In the event of a negligible (minor) defect, the customer’s only recourse shall be a reduction of the agreed purchase price. Should either or both of these types of supplementary performance prove impossible or disproportionate, we shall be entitled 
to refuse them. We shall be entitled to refuse supplementary performance in the event that the customer fails to fulfill its payment obligations in respect of the defect-free part of our performance. We shall bear the necessary costs associated with the supplementary performance; in particular transport, travel, labor and material costs. However, we shall not bear any additional costs that arise due to delivery of the goods to a destination other than the contractual place of performance.
(3) Should the supplementary performance referred to in paragraph 2 fail or be unreasonable for the customer, or should we refuse both types of supplementary performance within the meaning of § 439 (4) BGB, the customer shall be entitled to choose a corresponding reduction in the purchase price or to withdraw from the purchase contract in accordance with statutory provisions. Further claims asserted by the customer, on whatever legal grounds, are hereby excluded or limited in accordance with § 7.
(4) We shall accept no liability for damage that is attributable to the following causes: inappropriate or improper use, incorrect assembly by the customer or third parties, natural wear and tear, incorrect or negligent handling, excessive stresses, unsuitable operating equipment, defective (construction) work, chemical, electrochemical or electrical influences (unless we are responsible for them), improper modifications or repairs without our prior approval, or any other interference by the customer or third parties.
(5) The limitation period for claims for defects is 12 months from the transfer of risk, i.e. from delivery of the goods to the customer or to a freight forwarder or carrier (see § 5).
(6) Assurances and warranties are only valid if we expressly agree to them in writing.
(7) We do not provide any warranty for the usability of the goods for the purpose intended 
by the customer, unless the usability desired by the customer was expressly agreed as the purpose of the contract.

§ 7 Withdrawal of the customer, other liability on our part
(1) The customer’s statutory right of withdrawal shall – except for the cases described in § 6 – neither be excluded nor limited. Likewise, statutory or contractual rights and claims to which we are entitled shall neither be excluded nor limited.
(2) We shall only accept unlimited liability in the case of intent or gross negligence (including by our legal representatives and vicarious agents) and for damages resulting from injury 
to life, limb or health, which are based on a negligent breach of duty on our part or a willful 
or negligent breach of duty by our legal representatives or vicarious agents. Similarly, 
we shall accept unlimited liability in the case of fraudulent concealment of defects or the granting of warranties and assurances which cover a defect that gives rise to our liability. 
We shall also accept unlimited liability in the case of an absolute offence, in particular under the Product Liability Act (Produkthaftungsgesetz).
(3) In the case of other culpable violations of essential contractual obligations, our remaining liability shall be limited to the amount of the contractually foreseeable damages.
(4) In all other respects, we shall accept no liability regardless of the legal grounds 
(in particular, for claims arising due to negligence during the conclusion of a contract, breach 
of principal or subsidiary contractual obligations, tort or other tortious liability).
(5) Any refusal or limitation of liability on our behalf shall also apply to our legal representatives and vicarious agents.
(6) The above clauses do not change the regulations governing the allocation of the burden 
of proof.

§ 8 Retention of title
(1) We shall retain ownership of the delivered goods pending receipt of all payments under the delivery contract. In case of breach of contract by the customer – in particular in the event of default of payment – we shall be entitled to reclaim the delivered goods. Should we reclaim the delivered goods, this shall also signal our withdrawal from the contract. We shall be entitled to sell the goods that were reclaimed after delivery elsewhere, whereby the proceeds of the sale shall be credited towards the customer’s liabilities, minus reasonable processing costs.
(2) The customer shall treat the delivered goods with care and, in particular, insure them at its own expense against damage caused by fire, water and theft at their original value. To the extent that maintenance or inspection work is required, the customer shall have this performed on time at its own expense.
(3) In the event of seizure of the goods or other interference by third parties, the customer shall notify us immediately in writing so that we can take legal action in accordance with § 771 of the Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the judicial and/or extra-judicial costs related to legal action in accordance with § 771 ZPO, the customer shall be liable for any losses we incur. Provided that the ownership has not yet been transferred to the customer, the latter shall inform us in writing or in text form immediately in the event of seizure of the goods or other interventions by third parties, so that we can take legal action in accordance with § 771 ZPO. Insofar as the third party is not in a position to reimburse us for the judicial and/or extra-judicial costs related to legal action in accordance with § 771 ZPO, the customer shall be liable for any losses we incur.
(4) The customer is entitled to resell the delivered goods in the ordinary course of business; however, it hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim arising from the resale to its own customers or third parties, regardless of whether or not the delivered goods underwent further processing before being sold. The customer shall remain authorized to collect such claims even after their assignment to us. Our right to collect the claims ourselves shall remain unaffected. However, we shall refrain from collecting the claims as long as the customer meets its payment obligations from the proceeds received, is not in default of payment and, in particular, is not the subject of an application for settlement or insolvency proceedings and its payments have not been suspended. However, if this is the case, we shall be entitled to demand that the customer notify us of the assigned claims and their debtors, provide all information necessary for collection, hand over the associated documents and notify the debtors (third parties) of the assignment.
(5) Any processing or transformation of the delivered goods by the customer shall always be carried out on our behalf. Where the delivered goods are processed with other objects which do not belong to us, we shall acquire co-ownership of the new objects in the ratio of the value of the delivered goods (final invoice amount, including VAT) to the other objects at the time of processing. In all other respects, the provisions of this contract regarding retention of title shall also apply to the new object created via the processing.
(6) Where the delivered goods are inseparably mixed with other objects which do not belong to us, we shall acquire co-ownership of the new objects in the ratio of the value of the delivered goods (final invoice amount, including VAT) to the other mixed objects at the time of processing. Where the mixing takes place in such a way that the customer’s item is to be regarded as the main item, it is hereby agreed that the customer shall assign co-ownership to us on a pro-rata basis. The customer shall keep the resulting solely or jointly owned item safe on our behalf.
(7) To secure our claims against the customer, the customer shall also assign to us any receivables from third parties which arise for the customer as a result of the incorporation of the delivered goods in real property. We hereby accept this assignment with immediate effect.
(8) We are entitled to assign the claims from our business relationship. The place of jurisdiction and place of performance is our registered office.
(9) We shall release the securities due to us at the customer’s request, provided that the value of the securities exceeds the secured claims by more than 10%. We shall be entitled to choose which securities to release.

§ 9 Governing law, jurisdiction, place of performance
(1) The present contract and the entire business relationship are subject to the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the Sale of Goods (CISG).
(2) The exclusive place of jurisdiction for all disputes arising from or in connection with the business relationship is our registered office, unless another jurisdiction is prescribed by law.
(3) Unless otherwise stated in the written order confirmation, our registered office is also the place of fulfillment for all obligations arising from the contractual relationship (deliveries, payments).

Version of May 14, 2018