A. Validity of MSPROTECT's Terms and Conditions
B. Terms and Conditions of Purchase and Ordering
C. General Terms and Conditions of Service
A. Validity of MSPROTECT's Terms and Conditions
A.1 Validity
These terms and conditions apply exclusively to the contractual relationship between our business partners and us (MSPROTECT). They also apply to all subsequent transactions, even if they are not specifically referred to in each individual case. The terms and conditions of MSPROTECT's business partners do not apply, without the need for express objection in individual cases.
A.2 Place of jurisdiction and choice of law
The place of jurisdiction and place of performance is Bielefeld. German law applies exclusively, excluding the UN Convention on Contracts for the International Sale of Goods and other uniform laws.
B. Terms and Conditions of Purchase and Ordering
B.1
These Terms and Conditions of Purchase and Ordering of MSPROTECT shall apply exclusively to orders and purchases placed by MSPROTECT.
B.2
All orders placed and purchases made by MSPROTECT shall be processed exclusively on the basis of the statutory provisions, unless these Terms and Conditions regulate the relevant issue.
B.3.01
If the invoice is received by the 10th of the month, MSPROTECT shall pay on the 20th of the month with a 3% discount or on the 10th of the following month net.
B.3.02
If the invoice is received between the 11th and 20th of the month, MSPROTECT shall pay on the last day of the month with a 3% discount or on the 20th of the following month net.
B.3.03
If the invoice is received between the 21st and the last day of the month, MSPROTECT shall pay on the 10th of the following month with a 3% discount or on the last day of the month after next without discount.
B.4
If goods arrive early, the invoice shall be dated on the delivery date contractually requested by MSPROTECT. The value date shall be deemed the date of receipt of the invoice.
B.5
In the event of defective goods or services or partial delivery contrary to the contract, the invoice shall be dated on the date of defect-free or complete delivery. The value date shall be deemed the date of receipt of the invoice.
B.6
The contractual partner of MSPROTECT shall provide warranty and compensation to the extent and for the duration required by law.
C. General Terms and Conditions of Service
C.1. Order Confirmation and Scope of Services
C.1.01
The written order confirmation from MSPROTECT is decisive for the content of the respective contract. Verbal agreements in connection with the conclusion of contracts made with MSPROTECT employees who are not authorised to represent the company also require written confirmation from MSPROTECT in order to be valid.
C.1.02
The customer must provide MSPROTECT with all information and documents that are necessary or useful for the performance of the contractually agreed services. If a specification sheet is created and submitted to the customer for review and approval, this specification sheet shall define the scope of services in a manner that is binding for both parties.
C.1.03
MSPROTECT-attributable property specifications that contain measurable values are to be understood with a tolerance of ± 3%.
C.1.04
MSPROTECT shall only be obliged to provide consulting services on the basis of a special contract and in return for separate remuneration.
C.2. Trademarks / Third-party rights
C.2.01
MSPROTECT is entitled to affix its own company and trademarks. The customer is prohibited from removing such marks affixed by MSPROTECT.
C.2.02
The customer is liable for ensuring that the templates, drafts, plans, texts, trademarks and the like provided by them may be used lawfully.
C.3. Delivery
C.3.01
MSPROTECT reserves the right to choose the shipping method, unless a specific shipping method is expressly stipulated or agreed upon.
C.3.02
The place of performance for deliveries is the MSPROTECT premises, even if MSPROTECT handles the transport itself. Once the goods leave the MSPROTECT premises or warehouse, the customer assumes all risk. In the case of direct deliveries from the factory or upstream supplier, the risk is transferred to the customer upon dispatch. Insurance for the delivery is only provided at the customer's request and at their expense.
C.3.03
If shipment is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer upon readiness for shipment on the agreed delivery date. This shall also apply in other cases where MSPROTECT is not responsible for the delay in shipment.
C.4. Delivery time
C.4.01
Unless expressly agreed otherwise, agreed delivery periods shall apply ex works. Such delivery periods shall commence on the date specified in the order confirmation, but no earlier than when the documents, approvals, call-offs and shipping addresses to be provided by the customer are available, all details of the order have been clarified and the customer has made the agreed down payments or provided the agreed securities. If a delivery period has been agreed, it shall be extended appropriately if the customer is in arrears with the provision of documents, approvals, shipping address notifications, advance payments or securities to be procured by them. If a delivery date has been agreed, this shall be postponed appropriately if the customer is in arrears with the provision of documents, approvals, shipping address notifications, advance payments or securities to be procured by them. Delivery dates shall also be postponed or delivery times extended if the prerequisites for the services to be provided by MSPROTECT, which are to be provided by the customer itself or by third parties, are not met in good time.
C.4.02
If the customer requests changes to the order after order confirmation, the delivery period shall not commence until MSPROTECT has confirmed the change. The delivery date shall be postponed accordingly.
C.4.03
The performance period shall be extended appropriately in the event of unforeseen obstacles which MSPROTECT cannot avert despite exercising reasonable care under the circumstances of the case, such as a total or partial failure of subcontractors for which MSPROTECT is not responsible. In such a case, MSPROTECT may withdraw from the contract.
C.4.04
A claim for damages in lieu of performance or for damages due to delay is excluded in the cases referred to in Section C.4.03 if MSPROTECT has immediately informed the customer of the obstacles to performance that have arisen.
C.4.05
The same applies to fixed-date transactions.
C.4.06
Any damages to be paid by MSPROTECT due to delay shall be limited to the negative interest of the customer.
C.5. Partial deliveries
C.5.01
MSPROTECT is entitled to make partial deliveries to the extent reasonable for the customer.
C.5.02
If MSPROTECT exercises this right, payments for goods already delivered cannot be withheld for this reason.
C.6. Prices
C.6.01
The list prices valid on the day of delivery apply, unless the prices have been expressly agreed between the customer and MSPROTECT.
C.6.02
Unless otherwise agreed, prices are ex works or ex warehouse.
C.6.03
Any packaging costs will be charged at cost price and will not be taken back.
C.6.04
The prices and costs are exclusive of the applicable value added tax.
C.6.05
If the cost factors change after order confirmation, in particular the prices for raw materials or auxiliary materials, as well as wages and transport costs, we may adjust the prices accordingly if there is a period of more than 4 months between order confirmation and delivery.
C.7. Terms of payment
C.7.01
Payments to MSPROTECT are due no later than 10 days after the invoice date. If this date is exceeded, the debtor is in default of payment.
C.7.02
If the customer is in default of payment, MSPROTECT may charge default interest at a rate of 10 percentage points above the base rate. The proof and assertion of further damages remain unaffected by this.
C.7.03
The place of performance for payments is the registered office of MSPROTECT.
C.7.04
The customer may only offset undisputed or legally established claims.
C.7.05
Except in cases covered by C.7.04, the customer has no right of retention. Furthermore, the rights under Section 320 of the German Civil Code (BGB) remain in force as long as and to the extent that MSPROTECT has not fulfilled its warranty obligations.
C.7.06
If MSPROTECT accepts cheques for payment, this is only done on account of performance.
C.7.07
If, after conclusion of the contract – should the conclusion of the contract still require a declaration of intent by the customer – following the last declaration of intent by MSPROTECT aimed at concluding the contract - if there is a significant deterioration in the customer's financial situation, e.g. if bills of exchange and/or cheques are protested, MSPROTECT may, at its discretion, demand advance payment or security for all services and deliveries still to be performed under contracts arising from the same legal relationship (Section 273 of the German Civil Code (BGB)). If the customer does not comply with this request, MSPROTECT may withdraw from these contracts or, after setting a deadline, demand compensation in lieu of performance, namely 25% of the unfulfilled order amount without special proof, unless the customer can prove that the damage was less. Only in exceptional cases where unusually high damage has been incurred may MSPROTECT also demand compensation for damage exceeding the lump sum.
C.8. Duty to inspect and give notice of defects
C.8.01
Deliveries from MSPROTECT, including drawings, implementation plans and similar items, must be inspected by the customer immediately upon receipt to ensure that they are fit for purpose and in good condition.
C.8.02
Obvious defects must be reported to MSPROTECT in writing immediately, but no later than 6 days after arrival at the destination, specifying the exact nature of the complaint.
C.8.03
In the case of direct delivery of the goods to third parties, the complaint period is extended by 7 days.
C.8.04
The customer must also report hidden defects in writing immediately after discovery, but no later than 30 days after arrival of the goods.
C.8.05
If the customer fails to comply with the obligations specified in C.8.01 to C.8.04, any warranty claims are excluded, subject to C.9.
C.9. Warranty
The warranty limitations in these General Terms and Conditions do not apply to damages resulting from injury to life, limb or health that are based on an intentional or negligent breach of duty by us or one of our legal representatives or vicarious agents. They also do not apply if other damages are based on intent or gross negligence. Furthermore, the limitations of liability in these terms and conditions do not apply to so-called cardinal obligations; rather, they only apply to the breach of such obligations that do not enable the proper performance of the contract in the first place and on the fulfilment of which the customer does not or may not rely for this reason.
C.9.01
The warranty period is 12 months. Any liability and warranty is excluded for minor breaches of duty and insignificant defects. In the event that the customer has a right to subsequent performance, MSPROTECT shall decide whether the subsequent performance shall take the form of rectification of the defect or delivery of a defect-free item.
C.9.02
Work on items delivered by MSPROTECT or other services provided by MSPROTECT shall only be considered work to remedy defects or rectify faults • if the defect has been expressly acknowledged by MSPROTECT • or if complaints have been proven • and if these proven complaints are justified. Without these prerequisites, such work shall be considered special services.
C.9.03
In all other cases, repairs or replacement deliveries by MSPROTECT shall be provided as special services unless they are expressly made in recognition of a legal obligation.
C.9.04
The customer shall give MSPROTECT the necessary time and opportunity to carry out repairs and replacement deliveries owed under warranty. Only in urgent cases, e.g. if operational safety is at risk and to prevent disproportionately large damage, in which case MSPROTECT must be notified immediately, or if MSPROTECT is in default with the rectification of a defect, shall the customer be entitled to rectify the defect itself or have it rectified by third parties and to demand reimbursement of the necessary costs from MSPROTECT.
C.9.05
If, at the discretion of MSPROTECT, subsequent performance has not led to the rectification of the defect after a reasonable number of attempts to be assessed on a case-by-case basis, the customer is entitled to withdraw from the contract. At least three attempts at subsequent performance are reasonable. The number of attempts at subsequent performance after which the customer has a right of withdrawal must relate to a specific functional unit of the subject matter of the contract. Irrespective of whether the same functional unit of the subject matter of the contract is always affected, the customer has a right of withdrawal if the number of isolated defects makes it unreasonable for the customer to adhere to the contract.
C.9.06
If MSPROTECT has refused to provide subsequent performance despite the customer having a corresponding right to subsequent performance, the customer shall be entitled to withdraw from the contract immediately.
C.9.07
The same shall apply if MSPROTECT has not provided subsequent performance to which MSPROTECT is entitled within a reasonable grace period set by the customer.
C.9.08
The customer is only entitled to a price reduction (abatement) if MSPROTECT agrees to this.
C.9.09
All further claims of the customer are excluded.
C.9.10
No liability is assumed for damage for which MSPROTECT is not responsible. This includes, for example, damage caused by the following reasons: unsuitable or improper use, faulty assembly or commissioning by the customer or third parties, natural wear and tear, faulty or negligent handling, unsuitable operating materials or replacement materials, or chemical influences, unless these are attributable to MSPROTECT.
C.9.11
MSPROTECT does not provide any warranty for components provided by the customer. The customer is solely responsible for the suitability and quality of such components, unless expressly agreed otherwise.
C.9.12
In the event that goods delivered by MSPROTECT are installed outside Germany, even though the relevant contract was concluded with a branch or head office of the customer located in Germany, the customer shall bear the additional costs incurred as a result of any warranty measures to be performed by MSPROTECT, transport costs, travel expenses and other expenses that extend beyond the borders of Germany.
C.10. Compensation
C.10.01
The limitations of liability in these terms and conditions do not apply to damage resulting from injury to life, limb or health, nor to damage caused by MSPROTECT, a legal representative or a vicarious agent through wilful intent or gross negligence. Furthermore, the limitations of liability in these terms and conditions do not apply to so-called cardinal obligations; rather, they only apply to the breach of such obligations that do not enable the proper performance of the contract in the first place and on the fulfilment of which the customer does not or may not rely for this reason.
C.10.02
MSPROTECT shall only be liable for damages caused by MSPROTECT, a legal representative or a vicarious agent through wilful intent or gross negligence. Otherwise, liability is excluded.
C.10.03
Should MSPROTECT be obliged to pay damages, MSPROTECT shall only be liable in accordance with the following provisions for direct damage, i.e. only for direct damage to the delivery item itself.
C.10.04
MSPROTECT shall not be liable for consequential damage resulting from a breach of duty, including in the context of an obligation to remedy defects.
C.10.05
The same applies to damage resulting from tortious acts.
C.10.06
In addition to the above provisions, MSPROTECT shall only be liable for damage exceeding the damage to the delivery item itself in cases of intent and gross negligence, within the scope of the Product Liability Act, and in the absence of expressly warranted characteristics, if the purpose of this warranty was to protect the customer against damage not caused to the delivery item itself.
C.10.07
MSPROTECT shall only be liable for reasonably foreseeable damage typical for this type of contract, unless there is a case of intent or gross negligence.
C.10.08
Even in the event of liability for breach of material contractual obligations, liability shall not extend to compensation for consequential damages.
C.11. Call-off orders
C.11.01
If call-off orders are not called off within 4 weeks after expiry of the call-off period, MSPROTECT shall be entitled to demand payment.
C.11.02
The same applies to call-off orders without a specially agreed call-off period if 4 months have elapsed since notification of readiness for dispatch without a call-off.
C.12. Storage / delay in acceptance
C.12.01
If temporary storage of finished goods at MSPROTECT is expressly agreed or if storage becomes necessary due to delay in acceptance, MSPROTECT shall not be liable for any damage that occurs despite exercising reasonable care.
C.12.02
MSPROTECT is also not obliged to insure stored goods.
C.12.03
In the event of a delay in acceptance, MSPROTECT shall be entitled to store the goods at a commercial warehouse at the customer's risk and expense.
C.12.04
If the goods are stored at MSPROTECT's premises, MSPROTECT may charge 0.5% of the invoice amount per month, with a minimum charge of €25.
C.12.05
The two preceding clauses shall also apply in the event that shipment is delayed by at least two weeks beyond the indicated readiness for shipment at the request of the customer.
C.12.06
If the customer does not accept the ordered goods despite a deadline being set, MSPROTECT is entitled to demand 20% of the agreed price as lump-sum compensation, regardless of proof of actual damage. The customer reserves the right to prove a lower percentage in each case.
C.13. Retention of title
C.13.01
All deliveries are subject to retention of title.
C.13.02
This reservation, together with the following extension, shall apply until all claims arising from the business relationship with the customer have been paid and until MSPROTECT has been completely released from any contingent liabilities it has entered into in the interest of the customer.
C.13.03
Pledging of the delivered items is not permitted.
C.13.04
MSPROTECT is entitled to demand the return of the goods subject to retention of title for good cause, in particular in the event of default in payment, against offset of the proceeds of sale, without this being deemed a withdrawal from the contract. The prerequisite for this is that MSPROTECT has threatened to demand surrender with a performance deadline of 7 days set for the customer. This deadline may be set at the same time as the reminder.
C.13.05
If and to the extent that the goods taken back by MSPROTECT can be sold elsewhere as new in the normal course of business, the customer shall owe 10% of the invoice value of the goods as take-back costs without further proof. If it is not possible to sell the goods as new in the normal course of business, the customer shall owe a further 30% of the invoice value of the goods for loss of value without further proof. The customer reserves the right to prove a lower percentage in each case.
C.13.06
MSPROTECT reserves the right to claim further damages.
C.13.08
The customer hereby assigns in advance to MSPROTECT all claims arising from the resale and other utilisation of our goods.
C.13.09
The collection authorisation remaining with the customer despite the assignment shall expire upon revocation, which is permissible at any time.
C.13.10
If the value of the securities to which MSPROTECT is entitled exceeds MSPROTECT's claim against the customer by 50% in the case of goods deliveries and by 20% in the case of other services, MSPROTECT shall be obliged, at the customer's request, to release securities of its choice to the corresponding extent. C.14. Place of performance and fulfilment
C.14.01
The place of performance and fulfilment for the services to be provided by MSPROTECT is always the MSPROTECT premises.
C.14.02
The place of fulfilment for deliveries is the MSPROTECT premises or warehouse, in particular if MSPROTECT undertakes the transport itself.