General terms and conditions
General terms of business of MSL Mathieu Schalungssysteme und Lufttechnische Komponenten GmbH with other companies
1. General
1. The followings terms of sale and delivery apply exclusively to concluding contracts with natural people or legal entities who, when concluding the transaction, act on a commercial or freelance basis and with legal entities in public law or public law special assets. These general terms of business do not apply to concluding contracts with consumers.
2. The following terms also apply to all future business relationships even if they have not been explicitly agreed again. Differing conditions from the customer, which we do not explicitly recognise, are not binding for MSL even if we do not explicitly contradict them. The following terms also apply if we implement the customer's order without restriction even when aware of opposing or different terms from the client.
3. Section 312i Para. 1 Sentence 1 No. 1-3 and Sentence 2 of the German Civil Code (BGB) do not apply.
4. The version of the general terms and conditions in force at the time the contract was concluded always applies. We reserve the right to modify these general terms and conditions, if necessary.
2. Formation of the agreement
1. The offers are always subject to change and are non-binding unless we have explicitly referred to them in writing as binding. Orders, including those made online, are legally binding offers from the customer to buy that MSL can accept by sending the order confirmation or the ordered goods. The order confirmation is decisive in stipulating the scope of delivery. There is a right to correct errors in offers, order confirmations, and invoices.
2. Only the business management is permitted to make subsidiary agreements or assurances that go beyond the content of these general terms and conditions. The MSL sales employees are not permitted to do so.
3. Property rights
1. We retain our ownership, copyrights, and other property rights over all quotations, drafts, drawings, and other documents even if these documents were created using the customer's requirements. The customer may only pass these on to third parties with our written approval regardless of whether or not we have marked these as confidential. Drawings or other documents that are part of the quotations must be returned to us without delay at our request or if the order is not issued. Actions for the proper use of the acquired goods are excluded from these terms.
2. If the production of the goods according to the customer’s drawings, samples, or other requirements violates the property rights of third parties, the customer must indemnify us for all claims from third parties. We are not obliged to check the drawings, samples, or other information provided by the customer, including with regard to the property rights held by third parties.
4. Prices - dispatch costs
1. Our prices stated in the relevant valid price list arise from our quotation or order confirmation. In addition, even if not explicitly stated there, the statutory value added tax applicable on the date that the invoice is issued applies. For deliveries and services provided within the EU, the relevant German value added tax is calculated if the necessary information from the customer, such as the VAT no., is missing or incorrect.
2. The prices only apply to the ordered goods and/or services that are delivered or provided within 4 months of the contract being concluded. Numbers (3) to (4) apply with regard to increasing the price of goods and/or services that are delivered 4 months or more after the contract is concluded.
3. If, at the customer's request, goods are delivered or services provided more than 4 months after the contract is concluded and if after 4 months the salary and/or material costs, including the cost of any advance materials, have increased, MSL may raise the price in line with these cost increases up to the list prices valid on the date of delivery that already include this price increase. If in the case of later deliveries the costs stated hereinabove are lower than originally set, the costs for delivering the goods and/or services are reduced accordingly.
4. If the price increase is significantly higher than the increase in living costs the customer is permitted to withdraw from the contract.
5. Numbers (2) to (4) do not apply if the contract relates to custom-made products. If after the conclusion of a contract for custom-made products the salary and/or material costs, including the costs of any advance materials, increase, MSL is permitted to raise the price in line with these salary and/or material cost rises.
6. If MSL receives customer change requests after concluding the contract and these are taken into account, the price of the goods and/or service is modified to match the change requests. Numbers (2) to (4) do not apply.
7. Additional goods and services independent of the item covered by the contract are charged separately by MSL.
5. Delivery/transfer of risk
1. Delivery is ex works.
2. The type of delivery is agreed individually.
3. Shipment is always made at the customer's risk. The risk of random loss or damage is transferred to the customer as soon as the shipment is handed over to the organisation appointed to conduct the transportation or on delivery by MSL, at the latest after the goods have left the MSL warehouse for the purpose of transportation. If dispatch is delayed due to circumstances for which the customer is responsible, the risk is transferred to the customer on notification of the readiness to dispatch or collect.
4. If without culpability transport via the planned method to the planned location is not possible within the planned time period, we are permitted to deliver by other means or to another location; the additional costs are borne by the customer. The latter must have the opportunity to state a position in advance.
5. If there is transport damage, the customer must inform us in writing without delay.
6. Delivery is provided without unloading, whereby the access to the desired unloading point with a long heavy goods vehicle must be by way of easily accessible routes. It is the customer's task to unload the item at its expense. If this does not take place immediately after receipt of the delivery the costs for waiting periods are charged to the customer.
6. Period for delivery
1. Information on deadlines and delivery dates are non-binding if nothing further has been agreed in writing.
2. Delivery periods only start with the date of the order confirmation but not before clarification of all the technical issues and the provision of documents, approvals, consents to be obtained by the customer and receipt of any advance payment agreed in the individual case.
7. Delayed delivery/default damages
1. If there are short-term disturbances to the MSL business operations or those of advance suppliers for which neither MSL nor its advance suppliers are responsible, in particular due to employee disputes, lockouts and other cases of force majeure for which they are not responsible, they permit MSL to delay the delivery or service for the duration of the disturbance plus an appropriate start-up period or to withdraw in part or in full from the contract or the unfulfilled portion thereof.
2. If under Section 7 No. 1 MSL has a withdrawal right, it will inform the other party without delay about the unavailable goods/services and reimburse any consideration provided by the contractual partner without delay.
3. If the disturbance lasts longer than four weeks the customer is permitted after setting an appropriate subsequent period (at least fourteen working days) to withdraw from the unfulfilled portion of the contract. All reminders and periods set by the customer must be in writing to be effective.
4. If MSL is responsible for not complying with deadlines and periods assured in a binding manner, the client has the right to default compensation in the amount of half a per cent for each completed week of default up to a maximum however of 5% of the invoice value for the goods and services affected by the default. The extended liability in Section 287 of the German Civil Code (BGB) is excluded.
8. Payment/default by the customer
1. The goods are only delivered in return for payment in advance.
2. If MSL grants the customer the opportunity to pay by invoice, it must be paid within 30 days of the invoice being issued.
3. Agreed discounts are only granted if the customer's account does not include any due invoice amounts. Only the value of goods excluding freight and other subsidiary costs can be discounted. Discount payments on partial payments are excluded.
4. If MSL becomes aware of circumstances that question the creditworthiness of the customer, in particular if payment is in default, MSL is permitted to request the immediate payment of the outstanding amount even if it has accepted cheques. In this case, MSL is also permitted to request advance payments or collateral.
5. The customer may not undertake offsetting if their claim is disputed, legally binding, or finally determined.
9. Retention of title
1. Each item delivered remains our property until paid in full.
2. The customer must store the items subject to retention of title or joint ownership by MSL free of charge and handle them with care. For the duration of the retention of title, any change in ownership or location, remote destruction, damage or intervention by third parties, in particular pledging, must be notified to MSL without delay; if items are pledged there must be a pledging record.
3. The following applies during the MSL retention of title:
a) Processing or conversion always takes place for MSL as the manufacturer, but without there being an obligation for this. If the goods are processed with other objects that do not belong to MSL, MSL acquires joint ownership of the new item in the same ratio as the value of the goods to the other processed items at the time of the processing.
b) If the customer sells the retained goods, it assigns its receivables from the sale in the amount of the value of the retained goods as collateral to MSL on conclusion of the contract. The value of the retained goods as defined by these provisions is the invoice value of the relevant retained goods plus a 20% collateral supplement.
c) MSL is obliged to handover the collateral on request by the customer to the extent that the realisable value of its security exceeds the receivables protected by more than 20%.
d) Pledges or collateral transfers are not permissible for the retained goods.
e) MSL authorises the customer to collect the receivables assigned to MSL in its own name for their account but may revoke this. This collection authorisation may only be revoked if the customer does not properly comply with its payment obligations.
f) If third parties access the retained goods, the customer will refer to the ownership of MSL and inform them without delay.
10. Acceptance default
1. If the customer delays acceptance or infringes its other cooperation obligations, the invoice amount is due for immediate payment.
2. If the customer refuses acceptance after the end of a subsequent period set or previously declares it does not want to accept the goods, MSL can withdraw from the contract or request damages for non-fulfilment.
3. MSL can request 15% as damages for non-fulfilment. MSL is also entitled to assert higher proved damages and the customer is entitled to demonstrate that the damages that were incurred were lower than the flat-rates set or did not occur at all.
11. Withdrawal
1. MSL has, in particular, the right to withdraw from the contract beyond the statutory withdrawal regulations:
a) if MSL is not supplied by advance suppliers and this is due to reasons for which MSL is not responsible and which are not temporary;
b) if MSL is prevented from delivery for a period that is not temporary due to faults in its business operations or that of its advance suppliers, in particular employment disputes, lockouts and other cases of force majeure;
c) if the customer has made incorrect statements about facts that affect their creditworthiness or
- stopped its payments or
- has submitted an affidavit under Section 807 of the German Code of Civil Procedure (ZPO) or
- an application has been made for its assets in insolvency or settlement proceedings.
2. MSL can request damages for non-fulfilment if the statutory requirements are met. Section 10 No. 3 of these general terms and conditions apply.
12. Warranty
1. MSL provides a warranty for the products that we have produced and delivered for the service listed in the order confirmation, the use of good materials and proper execution. MSL accepts this warranty for 6 months starting from the time the goods are handed over.
2. The following applies with regard to the warranty right:
a) The warranty exists as selected by MSL initially only for the delivery of a replacement item or subsequent improvement.
b) If the subsequent improvement fails, the customer may choose between lowering the purchase price or withdrawing from the contract. Any damage resolutions by third party companies may only be undertaken with our agreement.
c) The warranty does not cover such damage that is incurred by the customer through natural wear or improper handling when installing/assembling the elements or components and their further processing.
d) For folded spiral-seam pipes and shaped parts, there is no warranty for oil tightness.
e) Uneven surfaces and colour differences on components, in particular on zinc-plated materials, within a delivery or between deliveries represent usual tolerances and are not defects.
f) Small irregularities in contractual goods that occur notwithstanding technically perfect manufacture as a result of natural characteristics due to the natural characteristics of the processed material do not permit the customer to assert warranty claims.
g) Apparent defects are only subject to the warranty if the customer has complained to MSL about these in writing within two weeks of delivery; defects that cannot be discovered within this period even after a careful check must be notified to MSL in writing without delay after discovery.
h) Warranty claims can only be asserted within one year of delivery.
3. If the warranty is exercised as recourse by the customer, the customer is obliged to inform us without delay on becoming aware of all redress cases occurring in the delivery chain. Otherwise, the goods are considered as accepted. Statutory retention rights by the customer against us only exist to the extent that the customer has not agreed on anything beyond the statutory default claims with its client.
4. The claim by the customer for the reimbursement of expenses is excluded for such expenses that would not have been occurred if the customer had taken adequate precautions for the subsequent fulfilment. If the goods are stored by the customer for significantly longer than the usual commercial period, the customer must disclose and prove that the goods already had the asserted defects at the time the risk was transferred.
13. Inspection and complaint duty
1. The customer's warranty rights require that it has properly complied with the investigation and complaint obligations stated in the following provisions and in Sections 377, 378 of the German Commercial Code (HGB).
2. Complaints about apparent defects that are not asserted without delay in writing at the latest within two weeks of receiving the goods with a precise description of the defect cannot be considered. Defects that are not obvious and were not recognised in spite of fulfilling the duties under Section 377, 378 of the German Commercial Code (HGB) must be asserted in writing - stating immediately any processing or modification - at the latest, however, two weeks after becoming known with a precise description of the defect.
3. The defective items are to be held for inspection by us in the condition at the time the defect was determined. MSL has the right to be persuaded of the justification for complaints at the site and location. Restrictions in the airway bills are not evidence of defects. If defects are due to the customer making imprecise or incorrect statements on the purpose or load on materials, MSL is free from all warranty obligations.
4. If goods are sent directly by MSL to third parties the customer must ensure that the complaint obligation agreed above in the relationship between MSL and the customer is also agreed in a binding manner between the third party and the customer. The customer must inform MSL without delay in writing about any complaint by the third party and pass on their complaint to MSL.
14. Liability
1. In all cases of contractual and non-contractual liability we only provide damages or reimburse expenses made in vain:
a) for deliberate action and gross negligence in the full amount; in the event of deliberate action and for gross negligence by simple vicarious agents and if this does not endanger the contractual purpose, we are only liable in the amount of typical, predictable damage that should have been prevented by the infringed duty;
b) in other cases: only from the infringement of an important obligation by us, our senior managers and our other vicarious agents if this puts the purpose of the contract at risk but always restricted to three times the purchase price per claim, in total to a maximum of five times the total purchase price unless this total is inappropriately low for the individual case. In the event of slightly negligent duty infringements, we are liable to the customer, but to the limit of typically predictable damage that should have been hindered by the infringed obligation;
c) in addition: if we are insured against the damage that has incurred, restricted to the coverage amount of our product liability insurance and under the proviso that the insurance has been paid. We are willing to grant customers the right to view our policy.
2. The liability limits in Section 14 No. 1 do not apply to liability for injury to life, limb, or health, to accepting guarantees for characteristics or the malicious hiding of a defect or to compulsory liability from the German Product Liability Act.
3. If nothing to the contrary is stated, the above liability is excluded. We reserve the right to assert the objection of joint culpability by the customer.
4. A limitation period of one year applies to all claims for the defects asserted against us.
5. The limitation restriction in Section 14 No. 4 does not apply to an item used according to the normal use for a construction and causing the defect or if we are accused of malicious actions. The limitation period starts at the time stated in Section 199 Para. 1 of the German Civil Code (BGB). It occurs at the latest at the end of the maximum periods stated in Section 199 Para. 2 to 4 of the German Civil Code (BGB). In the event of legal defects that exist in an in rem right of a third party, on the basis of which they may request the issue of the item, the period of limitation is 10 years.
6. Preventing the lapsing of claims from or in connection with the contractual relationships between the parties under Section 203 BGB ends at the time when we or the customer refuses to continue the negotiations on the claim or the circumstances on which the claim is based. If one of the parties does not explicitly declare the failure of the negotiations in writing, the negotiations continue for six months after sending the final correspondence that is the subject of the claim or the circumstance on which the claim is based and are then considered to have failed.
15. Place of performance and jurisdiction
1. If the customer is a sole trader, legal entity in public law or a public law special asset, the court responsible for the head office of MSL (66625 Nohfelden/Sötern) is the exclusive place of jurisdiction.
2. The same court of jurisdiction applies if the customer does not have a general court of jurisdiction in Germany, moves its residence or place of usual residence to another country after concluding the contract or the residence or place of usual residence is not known at the time the lawsuit is filed.
3. German law applies exclusively to disputes arising from this contract. The application of UN purchasing law (Convention on Contracts for the Internal Sale of Goods - CISG) is excluded.
16. Data privacy and security
We refer to our data protection declaration for provisions on data privacy.
17. Legal validity
If individual provisions of the contract agreed between us and the customer or these terms are or become invalid, this does not affect the validity of the other agreements made. A provision that comes as close as possible to the economic purpose of the parties will replace an ineffective regulation. This also applies in the event that the contact has gaps.
18. Operator information
MSL Mathieu Schalungssysteme und
Lufttechnische Komponenten GmbH
Industriestraße
66625 Nohfelden/Sötern
Telephone: +49 6852 / 884 - 0
Fax: +49 6852 / 884 – 10
Email: zentrale(at)msl-bauartikel.de
URL: www.msl-bauartikel.de
Director: Ingo Mathieu
Regional court: Saarbrücken
Commercial register number, HRB81401
VAT ID no. : DE 812939932
