Standard Terms and Conditions of Sale of QSC EMEA GmbH (“QSC”) for Integrator / Dealer (STCS)

(Last updated: March 07, 2024)

(Also available in Deutsch)

§ 1 Scope, Form

(1) The Standard Terms and Conditions of Sale (STCS) shall apply to all business relations with Integrators / Dealer (“Buyers”). The STCS shall only apply if the Buyer is an entrepreneur (§ 14 BGB – German Civil Code)

(2) The STCS shall apply to contracts concerning the sale and / or delivery of products of QSC. Unless otherwise agreed upon, the STCS shall apply in the version valid at the time of placement of the order of the Buyer and / or at any rate in the last version communicated to him in text form as a framework agreement also for similar, future agreements, without requiring a reference to them by QSC in each case.

(3) The STCS shall apply exclusively. Any deviating, opposing or supplementing standard terms and conditions of the Buyer shall only become an integral part of the Agreement if and to the extent that QSC has expressly agreed to their validity. This requirement as to consent shall apply in each case, for instance even if QSC carries out the delivery with full knowledge of the standard terms and conditions of the Buyer to the latter without any reservation.

(4) Any individual agreements entered into individual cases with the Buyer (including ancillary agreements, supplements and amendments) shall in each case have priority over these STCS. For the content of such agreements, a written contract and / or QSC’s written confirmation shall be authoritative, with reservation as to evidence to the contrary.

(5) Legally relevant declarations and notices of the Buyer in respect of the Agreement (e.g., setting a time limit, notice of defects, rescission, or reduction of the purchase price) must be made in writing, i.e. in written or text form (e.g., letter, email, fax). Statutory requirements as to form and other evidence, more particularly in the event of doubts concerning the legitimation of the declaring party, shall not be affected.

§ 2 Conclusion of the Agreement

(1) The offers of QSC shall be subject to confirmation and non-binding. This shall also apply if QSC has provided the Buyer with catalogues, technical documentations (e.g., drawings, plans, calculations, estimates, references to DIN standards), other product descriptions or documents – including in electronic form – in respect of which QSC reserves property rights and copyrights.

(2) Ordering products by the Buyer shall be deemed to be a binding offer to enter a contract.

(3) QSC at its own discretion may accept this order within two (2) weeks of its receipt. Ac-ceptance may be declared either in text form (e.g. confirmation of order by regular mail, fax or via e-mail) or by delivery of the products to Buyer. If QSC does not accept an order within the two (2) week-period or within any agreed period, Buyer`s order shall be deemed rejected.

§ 3 Delivery Term and Default in Delivery

((1) The estimated delivery date shall be included in the order or in QSC’s written acceptance of the order.

(2) If QSC cannot meet delivery terms for reasons for which it is not responsible (product is not available to ship/regional specific requirements dictate a change), it shall promptly inform Buyer thereof without delay and at the same time inform Buyer of the estimated revised delivery date. The same applies if QSC changes the scheduled ship date in cases where cash in advance payments are not received in a timely manner or if the account Buyer is placed on credit hold. If circumstances prevent delivery altogether, QSC may cancel the accepted order and Buyer shall, at its sole and exclusive remedy, obtain a refund of all amounts paid to QSC for the ac-cepted order. If QSC fails to ship the order within six (6) months of the initial estimated delivery date, Buyer can choose to cancel the order.

(3) If Buyer requests a postponement of the scheduled delivery date, the following applies:

• 3.1 Rescheduling of delivery dates are only possible once and within a period of six (6) months following the date of the acceptance of the order.
• 3.2 The rescheduling request must be received in writing from the Buyer no later than 5 working days prior to the current scheduled ship date.
• 3.3 For non-standard orders, QSC has the right to charge storage costs for the time from the first requested delivery date until the rescheduled delivery date.

(4) If the Buyer fails to take delivery of the order within six (6) months following the date of the acceptance of the order, QSC can choose to cancel the accepted order.

(5) The rights of the Buyer in accordance with § 8 of these STCS remain unaffected. The same applies for QSC’s statutory rights, if delivery is objectively impossible or unreasonably difficult.

§ 4 Delivery, Passing of Risk, Acceptance, Default in Taking Delivery

(1) Subject to individual agreements to the contrary, INCOTERMS 2020 DDP apply for all de-liveries in the European Union. INCOTERMS 2020 DAP apply for all deliveries outside the European Union. Subject to individual agreements to the contrary, standard shipping deliveries shall be made to the Buyer's company seat specified by the Buyer and registered with QSC.

(2) QSC shall bear the costs for shipment and transport insurance, subject to the following restrictions.

• 2.1 If Buyer selects an express shipping method, a surcharge shall be levied, depending on the size of the shipment. The price surcharge shall be communicated in each case as part of the acceptance of the order and invoiced to Buyer.
• 2.2 If the order is below the minimum order value of Euro 500.00, Buyer shall bear the transport costs incurred. These shall be invoiced to him by QSC.
• 2.3 If the Buyer requests delivery to an address other than the with QSC registered address of Buyer’s company seat (drop ship), QSC shall invoice Buyer for any difference in the costs that would be incurred for delivery to the with QSC registered address of Buyer’s company. However, QSC is under no obligation to accept such a request for delivery to another location (drop ship). Such delivery shall be at QSC’s sole discretion.

(3) If the Buyer is in default with taking delivery by the scheduled ship date and if none of the conditions for a permissible postponement of the delivery date according to § 3 (3.1 to 3.3) are met, QSC is entitled to charge a lump-sum compensation in the amount of 0.5% of the agreed purchase price per calendar week up to a maximum total of 5% of the agreed purchase price until taking delivery by the Buyer.

The proof of higher damages and QSC’s statutory claims (such as reimbursement of additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be credited against further monetary claims. The Buyer shall be entitled to prove that QSC has incurred no damage at all or only significantly less damage than the aforementioned lump sum.

§ 5 Prices and Terms of Payment

(1) Unless otherwise agreed upon in individual cases, QSC’s prices which are valid on the respective date of the conclusion of the Agreement shall apply, ex, warehouse plus statutory value added tax.

(2) In the event of sale by delivery the obligation to bear the transport costs shall be governed by the provisions of § 4 of these STCS.

(3) The purchase price shall be due and payable within two (2) weeks of receipt of the invoice and delivery of the order. QSC shall, however, be entitled at any time, even within the framework of an ongoing business relationship, to execute delivery in whole or in part only against advance payment. QSC shall notify Buyer of any such required advance payment no later than the time of the order confirmation. In any case and prior to all agreed terms of payment, QSC shall be entitled to change an agreed terms of payment to payment in advance upon notice of termination of the Agreement, regardless of the legal reason.

(4) Failure to pay all invoice amounts on or before the due date constitutes a default. During the default period, interest shall be charged on the purchase price at the applicable statutory default interest rate. QSC reserves the right to assert further damages for default.

(5) The Buyer shall only be entitled to the rights of set-off or retention to the extent that its claim has been finally determined by a court of law or is undisputed. In the event of defects concerning the delivery, the reciprocal rights of the Buyer, in particular in accordance with § 7 Para 7 Sentence 2 of these STCS shall not be affected.

(6) If after the conclusion of the Agreement it becomes apparent (e.g., following an application to initiate insolvency proceedings) that QSC’s claim to the purchase price is jeopardised by a lack of solvency of the Buyer, QSC shall be entitled in accordance with the statutory provisions to refuse performance and – if necessary after setting a deadline – to rescind the Agreement (§ 321 BGB). In the event of agreements concerning the manufacturing of non-fungible products (manufacturing to customer’s specification), QSC may declare rescission immediately; the statutory provisions governing the dispensability of setting a time limit shall not be affected.

§ 6 Retention of Title

(1) Notwithstanding delivery and the passing of risk in the products sold, or any other provisions of these conditions, legal title of the products sold shall not pass to Buyer until QSC has received payment in full of the price of the products.

(2) After termination of an Agreement QSC may, at its sole discretion, retake, sell or otherwise deal with or dispose of any products where title has not passed from QSC to Buyer.

(3) Until such time as the title in the products passes to Buyer, Buyer shall hold the products as QSC’s fiduciary agent, including undertaking the following:

• a) Buyer shall keep the products insured against all risks, on QSC’s behalf, for their full price, with an insurer that is acceptable to QSC.
• b) Buyer shall keep the products separate from all other goods held by Buyer and shall take other reasonable steps so that the products remain readily identifiable as QSC’s property.
• c) Buyer shall be entitled to resell or use the products in the ordinary course of its business, but shall account to QSC for the proceeds of any sale or otherwise of the products including insurance proceeds, and shall keep all such proceeds separate from any moneys or properties of the Buyer and third parties.

(4) If the products are integrated or modified by Buyer and if integration is done with goods that QSC does not own, QSC shall become co-owner of the goods. This shall also apply if QSC’s products are completely modified and integrated with other goods.

(5) If a third party attempts to pledge or otherwise dispose of the products prior to title passing to Buyer, Buyer shall immediately notify QSC and will assist QSC seeking an injunction in ac-cordance with the applicable law. Buyer shall be liable to QSC for any damages caused by such failure.

(6) QSC shall on demand of Buyer release any part of the collateral if the value of the collateral held in favor of QSC exceeds the value of the claims being secured. It is to QSC’s decision to release those parts of the collateral suitable for QSC.

§ 7 Claims of the Buyer based on Defects

(1) The rights of the Buyer in the event of defects in quality and title (including wrong and short delivery as well as improper mounting or defective mounting instructions) shall be governed by the statutory provisions unless otherwise determined hereinbelow. In all cases the statutory special provisions for the final delivery of the unprocessed products to a consumer, even if the consumer has processed them further, shall not be affected (supplier recourse in accordance with §§ 478 BGB). Any claims under supplier recourse shall be excluded if the defective products were further processed by the Buyer or another company (e.g., through the integration into another product).

(2) The basis of QSC’s liability for defects shall be governed by the agreement entered into with respect to the condition of the products. The agreement concerning the condition of the products shall be deemed to include all product descriptions and manufacturer specifications, which are covered by the individual Agreement or had been publicly disclosed by QSC (specifically cat-alogues or on QSC’s website) at the time of the conclusion of the agreement. These descriptions shall be understood as such and shall not constitute a guarantee (“Garantie”).

(3) If no agreement has been entered into with respect to the condition, it must be assessed in accordance with the statutory provisions whether there is a defect or not (§ 434 Para 1 Sentence 2 and 3 BGB). However, QSC shall not assume any liability for public statements of the man-ufacturer or other third parties (e.g., advertising claims) which go beyond the product descrip-tions and manufacturer specifications agreed in accordance with § 7 (2) which have not been pointed out to QSC by the Buyer as critical for his purchase.

(4) The Buyer shall inspect the products upon delivery by QSC, to the extent that this is feasible in the ordinary course of business, and, in the event of a defect, shall inform QSC of any defects in writing within 7 working days from delivery. If the Buyer fails to notify QSC of any such defects within this period of time, the products shall be deemed approved. If a defect is discovered afterwards which could not have been discovered during the initial inspection, the Buyer shall notify QSC in writing within 7 working days of its discovery; otherwise, the products shall be deemed approved even in consideration of such defect.
Timely dispatch of the notification shall be sufficient to preserve the rights of the Buyer.
If QSC fraudulently concealed the defect, QSC shall not be entitled to invoke these provisions.

(5) The Buyer’s right to make a warranty claim is expressly conditioned on the Buyer’s com-pliance with its obligation to investigate and give notice of defects.

(6) If the delivered products are defective, QSC may decide to carry out a subsequent per-formance by remedying the defect (subsequent rectification) or by replacing the product (re-placement delivery). QSC’s right to refuse subsequent performance under the statutory con-ditions shall remain unaffected.

(7) QSC shall be entitled to make the subsequent performance owed, dependent upon payment of the purchase price owed by the Buyer. The Buyer shall, however, be entitled to retain a portion of the purchase price that is in reasonable proportion to the defect.

(8) The Buyer shall give QSC the time and opportunity necessary for the subsequent perfor-mance owed and, in particular, must return the affected products for inspection. In the event of a replacement delivery the Buyer shall return the defective products to QSC in accordance with the statutory provisions. QSC has no obligation to remove integrated products or to reintegrate repaired or replaced integrated products unless QSC performed the initial integration.

(9) The expenses necessary for the purpose of inspection and subsequent performance, in particular transport, road, working, and material costs as well as possible removal and inte-gration costs, shall be borne or refunded by QSC subject to the statutory provisions if there is an actual defect. Otherwise, QSC may demand a refund from the Buyer for the costs incurred in connection with the unjustified request for removal of defects (in particular inspection and transport costs), unless the defectiveness was not detectable by the Buyer.

(10) If the subsequent performance has failed, or if a deadline set by the Buyer for the sub-sequent performance has expired without success, or is dispensable in accordance with the statutory provisions, the Buyer may rescind the purchasing agreement or reduce the purchase price. In the event of an irrelevant defect, there shall, however, not be any right of rescission.

(11) Any claims by the Buyer for damages and / or reimbursement of expenses shall exist also in the case of defects only in accordance with § 8 and are otherwise excluded.

§ 8 Liability

(1) QSC shall be liable without limitation, irrespective of the legal grounds, within the scope of fault-based liability

• for intent or gross negligence,
• for injury to life, limb or health,
• according to the regulations of the product liability law as well as
• to the extent of any guaranty (“Garantie”) assumed. Any product descriptions and specifications as well as any descriptions on QSC’s website shall not con-stitute such guaranties

(2) In the event of a slightly negligent breach of an obligation that is essential for achieving the purpose of the Agreement (cardinal obligation), the amount of liability shall be limited to the damage that is foreseeable and typical in view of the nature of the transaction in question. There shall be no further liability.

(3) The above limitation of liability shall also apply to personal liability of QSC’s employees, repre-sentatives and company management bodies.

§ 9 Choice of Law and Place of Jurisdiction

(1) These STCS and the contractual relationship between QSC and the Buyer shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law and more particularly the UN Convention on the International Sale of Goods (CISG).

(2) The competent courts for QSC’s registered office in Sinsheim, Germany, shall have ex-clusive jurisdiction for all legal disputes resulting directly or indirectly from the contractual rela-tionship between QSC and the Buyer. QSC may, however, also file an action, at its option, before the courts which are competent for the registered office of the Buyer.