Terms of service

General terms and conditions for commercial customers

§1 Validity of the terms and conditions, general

1. These General Terms and Conditions shall apply exclusively to deliveries and services of the company (‘MSM GmbH’); we shall only recognise general terms and conditions of business/purchasing of the customer that conflict with or deviate from our General Terms and Conditions to the extent that we have expressly agreed to them in writing. They shall also have no effect if we have not objected to them in individual cases.
2. The provision in Clause 1.1 shall also apply to all future transactions with the customer.
3. The assignment of claims against us to third parties is excluded. § Section 354 a HGB remains unaffected.

§2 Offers and conclusion of contract

1. The company's offers are non-binding. The offers represent a non-binding invitation to the customer to order goods from the company.
2. By ordering the desired goods, by completing and sending the order by e-mail, fax, telephone or post, the customer submits a binding offer to conclude a purchase contract.
3. The company can accept this offer within a period of 30 calendar days by sending an order confirmation or dispatching the ordered goods. The order confirmation shall be sent by e-mail, fax or post. If the deadline expires without result, the offer is deemed to have been rejected.
4. The documents belonging to an offer submitted by the company, such as illustrations, drawings, weights and dimensions, are only approximate values. Deviations from product specifications are permitted provided they are insignificant, do not constitute a material defect and have not been bindingly promised.
5. The Company's offer documents, drawings, descriptions, samples and cost estimates shall remain the property of the Company and may not be passed on, published, reproduced or otherwise made accessible to third parties without the Company's authorisation. Upon request, the documents must be returned without retaining copies.
6. We expressly reserve the right to sell the goods or services offered in the meantime. If an item or service that has already been ordered by a customer is no longer available in the meantime, we will inform the customer immediately and, if necessary, offer a replacement or cancel the order. In this case, a full refund of the amount already paid will be made.

§3 Information/counselling

1. We provide information and technical advice to the best of our knowledge based on our experience. However, all details and information on the suitability and application of our goods are non-binding and do not exempt the customer from carrying out his own tests. Section 9 of these General Terms and Conditions applies to any liability.

§4 Prices, price changes

1. Unless otherwise stated in the order confirmation, the prices are ‘EXW’ (ex-works - Incoterms 2017), excluding packaging, insurance, freight and any surcharge for small quantities. These items will be invoiced separately. The customer shall dispose of the packaging at his own expense.
2. All prices are net prices excluding VAT. This is calculated and shown separately in the invoice at the statutory rate on the day of invoicing (currently 19%).
3. The Company may charge the Customer for any additional costs arising from the Customer's change requests even if the Company agrees to such change requests, provided that the Company has informed the Customer in advance that additional costs will be incurred.
4. If there are more than six months between the conclusion of the contract and the agreed and/or actual delivery date, the Company's prices valid at the time of delivery or provision shall apply. In the event of price increases by its suppliers, increases in labour and transport costs or other unexpected cost increases, the Company shall be entitled to demand negotiations on a new price. In the event of failure to reach agreement, the Company shall be entitled to withdraw from the contract.

§5 Delivery times

1. The delivery periods stated in the offer are non-binding unless a binding delivery period has been agreed in individual cases and confirmed in writing. Compliance with an agreed binding delivery period by the company presupposes that all commercial and technical questions between the contracting parties have been finally clarified when the delivery date is agreed and that the customer has fulfilled all obligations incumbent upon him in due time.
2. The Company shall not be in default if its suppliers fail to supply it correctly or on time for reasons for which the Company is not responsible.
3. The delivery deadline is met when the company has notified the customer that the goods are ready for dispatch.
4. If collection by the customer is delayed by more than 5 working days after notification of readiness for dispatch or if the customer is already in default of acceptance, the customer shall be charged the costs incurred for storage and handling or, in the case of storage at the company's works, at least 1% of the invoice amount for each month of storage or part thereof.
5. War, strikes, lock-outs, shortages of raw materials and energy, traffic and unavoidable operational disruptions, orders from higher authorities - also insofar as they make the execution of the affected transaction uneconomical for the foreseeable future - as well as all other cases of force majeure, including at our suppliers, shall release us from the obligation to deliver for the duration of the disruption and to the extent of its effects. Such events shall entitle us to withdraw from the contract in whole or in part without the Buyer having any right to compensation.
6. Partial deliveries are permissible and must be paid for in accordance with the conditions, insofar as they are reasonable for the customer.

§6 Dispatch and transfer of risk, acceptance

1. In the event that the parties have agreed in writing in the order confirmation that the goods are to be dispatched, the risk of accidental loss or deterioration of the goods shall pass to the customer as soon as the goods have been handed over to the person carrying out the transport or have left the company's works for the purpose of dispatch. If dispatch is delayed or not carried out at the instigation of the customer, the risk shall pass to the customer upon notification of readiness for dispatch.
2. At the customer's request, deliveries can be insured in his name and for his account.
3. Goods must be accepted by the customer, even if they have insignificant defects, without prejudice to the rights under clause 8 of these terms and conditions.

§7 Installation and commissioning

1. Assembly, installation and commissioning of the machines shall only be carried out by the Company if this has been agreed separately in writing and only under the Company's assembly conditions.
2. The time and place of commissioning must be agreed between both parties. The duration of commissioning depends on the complexity of the system.

§8 Warranty, material defects

1. The customer's warranty claims in the event of defects shall be governed by the statutory provisions within the statutory periods, unless deviations arise from the following provisions. Subsequent fulfilment shall take place at our discretion in the form of rectification or subsequent delivery.
2. When purchasing new goods, the customer's warranty claims for defects expire one year after receipt of the goods.
3. The customer's warranty claims are excluded for the purchase of used goods.
4. The limitation period of one year or the exclusion of warranty shall not apply if the obligation to pay compensation is based on physical injury or damage to health due to a defect for which the company is responsible or on intentional behaviour or gross negligence on the part of the company or its vicarious agents. Notwithstanding the above, the company shall be liable under the Product Liability Act.
5. The warranty shall not apply if the customer modifies the goods, has them modified by a third party or uses them improperly without the company's consent and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the customer shall bear the additional costs of remedying the defect resulting from the modification.
6. The customer is obliged to inspect the delivery item for any defects upon delivery and to notify us of these immediately in writing. The relevant provisions and legal consequences of the German Commercial Code (HGB) shall apply accordingly.
7. If a complaint proves to be unjustified, the customer shall reimburse the company for all expenses incurred by us as a result.

§9 Liability for damages due to fault

1. The Company's liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and unauthorised action, shall be limited in accordance with this Clause 9, insofar as fault is involved in each case.
2. The company shall not be liable in the event of simple negligence on the part of its executive bodies, legal representatives, employees or other vicarious agents, insofar as this does not involve a breach of material contractual obligations. Material contractual obligations are those that grant the contracting parties the right that the contract is intended to grant according to its content and purpose, in particular those obligations whose fulfilment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely.
3. Insofar as the Company is liable for damages on the merits in accordance with Clause 9.2, this liability shall be limited to damages which the Company foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which the Company should have foreseen if it had exercised due care. Indirect damage and consequential damage resulting from defects in the delivered goods shall only be eligible for compensation if such damage is typically to be expected when the goods are used as intended.
4. In the event of liability for simple negligence, the Company's liability for damage to property and any further financial losses resulting therefrom shall be limited to an amount of EUR 25,000.00 per claim (corresponding to the current sum insured under the product liability insurance or liability insurance), even if this involves a breach of material contractual obligations.
5. The above exclusions and limitations of liability shall apply to the same extent in favour of the company's executive bodies, legal representatives, employees and other vicarious agents.
6. Insofar as we provide technical information or act in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by the company, this is done free of charge and to the exclusion of any liability.
7. The limitations of this Clause 9 shall not apply to the Company's liability for intentional and grossly negligent behaviour, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.

§10 Retention of title

1. The Company shall retain title to the delivered goods (goods subject to retention of title) until fulfilment of all claims, regardless of the legal grounds, arising from the legal relationship underlying the delivery to which the Company is entitled against the Customer.
2. The Customer is obliged to notify the Contractor immediately in writing of any seizure of the goods subject to retention of title and to inform the pledgees of the retention of title. The customer is not authorised to sell, give away, pledge or assign by way of security the goods delivered to him subject to retention of title - except in the cases specified in the following paragraphs.
3. If the delivery is made for a business operation maintained by the customer, the goods may be resold in the ordinary course of business. In this case, the customer's claims against the purchaser arising from the sale are hereby assigned to the company. In the event of resale of the goods on credit, the customer shall reserve title to the goods vis-à-vis his buyer. The Customer hereby assigns to the Company the rights and claims arising from this retention of title vis-à-vis his buyer.
4. Any treatment or processing of the reserved goods by the customer shall be carried out by the customer for the company free of charge. If the reserved goods are processed, combined, mixed or blended with other goods not belonging to the Company, the Company shall be entitled to the resulting co-ownership share in the new item in the ratio of the factor value of the reserved goods to the other processed goods at the time of processing, combining, mixing or blending. If the customer acquires sole ownership of a new item, the parties agree that the customer shall grant the company co-ownership of the new item in proportion to the factor value of the processed or combined, mixed or blended goods subject to retention of title and shall store these for the company free of charge. If the reserved goods are resold together with other goods, regardless of whether without or after processing, combining, mixing or blending, the advance assignment agreed in clause 3 above shall only apply in the amount of the factor value of the reserved goods that have been resold together with the other goods.
5. If goods subject to retention of title are installed by or on behalf of the customer as essential components in the property of a third party, the customer hereby assigns to the company any claims for remuneration arising against the third party or the party concerned, together with all ancillary rights, including the granting of a security mortgage.
6. If goods subject to retention of title are installed as essential components in the customer's property, the customer hereby assigns to the company all claims arising from the sale of the property or property rights, including all ancillary rights.
7. If the value of the securities existing for the Company in accordance with the above provisions exceeds the value of the Company's claims - not only temporarily - by more than 20 % in total, the Company shall be obliged to release securities of its choice accordingly at the Customer's request.
8. If the company asserts the retention of title, this shall only be deemed a cancellation of the contract if this is expressly declared in writing. The customer's right to possess the reserved goods shall expire if he fails to fulfil his obligations arising from the legal relationship underlying the delivery.

§11 Payment

1. Payments must always be made in advance, unless otherwise agreed in writing. In the event of default in payment, the provisions of Clause 11.2 shall apply and, in addition, the statutory provisions regarding default in payment.
2. In the event of default in payment or if our claims are jeopardised by a deterioration in the customer's creditworthiness, the company shall be entitled to declare all claims arising from the business relationship with the customer due and payable. It is then also authorised to carry out outstanding deliveries only against advance payment or against the provision of securities. If the customer is not able to provide securities within a reasonable period of time after setting a deadline with the threat to withdraw from the contract if necessary, the company has the right to withdraw from the contract.
3. The company shall be entitled to charge interest on arrears at a rate of 9 percentage points above the ECB base rate p.a. from the date of default of payment. This is without prejudice to the possibility of claiming higher actual damages.
4. Bills of exchange and cheques shall only be deemed to be payment after they have been honoured and credited to the company's account without reservation and shall be accepted without any obligation to present and protest them in good time and only by special written agreement and with all collection and discount charges being charged.
5. The withholding of payments due to the assertion of rights of retention or offsetting with counterclaims by the customer is only permitted if these counterclaims are undisputed or have been legally established.

§12 Default of acceptance

1. If the Buyer is in default of acceptance for more than two weeks, MSM shall be entitled to withdraw from the contract after setting a grace period of one week and may, without prejudice to other rights, freely dispose of the object of purchase.
2. For the duration of the Buyer's default of acceptance, MSM shall be entitled to store the delivery items at the Buyer's risk and expense. MSM may also use a forwarding agent or a warehouse keeper for this purpose.
3. During the delay in acceptance, the Buyer shall pay MSM a flat rate of 1% of the purchase price per week as compensation for the storage costs incurred without further proof, up to a maximum of EUR 30.00 per week, unless the Buyer can prove a lower loss. If higher storage costs are incurred, MSM may demand reimbursement of these costs from the Buyer against proof.
4. In addition to withdrawal, MSM may refuse to fulfil the contract and demand compensation for non-fulfilment. MSM shall be entitled to demand either a lump sum of 20% of the agreed gross purchase price as compensation for non-fulfilment - unless the Buyer can prove that the damage is lower - or compensation for the actual damage incurred by the Buyer.

§13 Applicable law, place of jurisdiction, partial invalidity

1. Insofar as the company stores and transmits the customer's order-related personal data, this is done exclusively for the processing and fulfilment of the order. In accordance with the provisions of the applicable data protection law, the company undertakes to comprehensively protect the customer's personal data.
2. These General Terms and Conditions and the entire legal relationship between the company and the customer shall be governed by the substantive law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
3. Unless otherwise stated in the order confirmation, the place of fulfilment is the company's registered office.
4. If the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the company's registered office shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.
5. Should any provision of these General Terms and Conditions be or become invalid, this shall not affect the validity of all other provisions and agreements between the company and the customer.

MSM Maschinenbau GmbH, Buchbrunner Straße 14, 97318 Kitzingen, Germany