1. General
1.1 The Terms and Conditions specified below apply exclusively to any business relations between msg and their clients; any conditions used by a client, which are variance do not apply, even if msg has not expressly stated that a client's conditions are invalid. The Terms and Conditions specified below apply especially to orders for consulting on systems, applications or organisation and/or for the installation, delivery or right to use hardware or individual, self-contained software programs or parts thereof. In case of doubt, terms and conditions agreed in a contract concluded betwenn both parties take precedence over the Terms an Conditions specified below.
1.2 Any changes, variations, and additions to concluded contracts, or to these Terms and Conditions, must be made in writing.
1.3 If any provision in the Terms and Conditions is or becomes invalid, the validity of the remaining Terms and Conditions is not be affected. The parties to the contract are obliged to replace any invalid provision with a valid provision. Any such changes must meet the contractual objective of both parties to the contract in a way that is most cost-effective for both parties.
1.4 German law alone applies to the contract, with the exclusion of the UN CISG on the purchase of goods.
1.5 The place of execution is Ismaning. The place of jurisdiction is Munich.
1.6 The rights and responsibilities resulting from the contract concluded between msg and the client can only be transferred to a third party with the agreement of the other party to the contract.
2. Placing and Execution of Orders
The services that msg has agreed to deliver, any deadlines and/or time limits, payment and any further conditions will be stipulated in an individual contract.
3. Duty to Examine and Notify; Scope of Services
3.1 If the client is a businessperson, then he or she is obliged, immediately after receipt of goods, to test any software or software components for any faults and to immediately inform msg in writing of any detectable fault.
3.2 Any notice of defect does not release the client from his or her payment obligation.
4. Purchase of Goods or Services, Warranty
4.1 If the services required by individual contract are a deliverable, then the client must purchase this deliverable after delivery by msg and notification of delivery or after notification of completion by msg. If the client does not purchases the deliverable, then he or she must inform msg of any concrete faults in a detailed description in a defect protocol immediately, or, at the latest, within 14 working days after installation. If msg does not receive either a purchase declaration or a defect report within this time limit, then the deliverable is considered as purchased. In the case of non-essential defects, the client may not refuse to purchase the deliverable. In the case of a contact of sale for standard software or hardware, the purchase must take place immediately after delivery.
4.2 The implementation of the deliverable, or, in the case of standard software or hardware, the installation, and/or the first utilization of the deliverable by the client, regardless of whether in its entirety or only in part, are equivalent to purchase.
4.3 The client is aware of the fact that given the range of applications and due to their great complexity, standard software cannot always be delivered in an error-free condition.
4.4 If an individual contract envisages the provision of services as separate and testable partial deliverables and their respective purchase, then msg is obliged to provide the partial deliverable after its completion and to inform the client or to request payment thereof. Furthermore, in these cases, with regard to partial deliverables, the same conditions apply as to the purchase of a complete deliverable as set out in clauses 4.1. and 4.2. of these Terms and Conditions.
4.5 In the case of an contract of work concluded with msg as an individual contract, msg is entitled to correct any occurring defects either by rectification or replacement.
4.6 In the case of a contract of sale concluded with msg as an individual contact, in the case of defect, the purchaser is authorised to exercise his or her right to chose between the rectification or replacement of the defect only after the agreement of msg has been given and under consideration of any mutual legitimate concerns.
4.7 If msg is not willing or able to rectify any defects, or the rectification of defects is not successful, then the purchaser is entitled to withdraw from the contract or to receive a commensurate reduction of the purchase price.
4.8 Any warranty claims of the client towards msg lapse after a period of 12 months. The limitation period begins with the purchase of the product or service or, if the nature of the deliverable excludes this, then with the completion of the deliverable; in the case of a contract of sale, the limitation period begins with the handover of the purchase. During the course of any negotiations concerning defects, the duration of the limitation period is inhibited. This inhibition has the effect that the period of time, during which the limitation period is inhibited, is not included in the calculation of the limitation period. In all other cases, statutory provisions apply.
4.9 If msg provides products or services that are not covered by the warranty, then msg is entitled to charge the client an appropriate sum according to the conditions of the individual contact. If payment by the hour, or by the day, is stipulated in the individual contact, then the hourly or daily rate as stipulated in the in the individual contact is the applicable rate.
5. Prices, Terms of Payment
5.1 All prices are in euro and exclusive of the respective valid value-added tax.
5.2 All invoices from msg are to be paid by the client, without any discounts, at the latest with 14 consecutive days, including weekends, from the date of issue.
5.3 If payment is delayed, msg is entitled to charge interest payable on arrears of 5% for private end-users, and 8% for retailers, above the relevant base interest rate of the German Bundesbank. msg has the right to charge higher interest arising from a further legal justification.
5.4 The client may not offset any counterclaims, unless this is justified by indisputable or legally binding claims.
5.5 If, after conclusion of an individual contract, msg becomes aware that there is risk of non-ability to pay on the part of the client, then msg is entitled to invoice the client for all services rendered up to that point in time. In such a case, msg is also entitled, within an appropriate time limit, to make the fulfilment of any further outstanding services dependent on the client providing securities or an advance payment. If, at the end of this time limit, payment has not been made, then msg is entitled to withdraw immediately from the respective individual contract.
5.6 In such a case, msg retains the right to demand that the agreed sum be paid. msg, however, must also allow the deduction of the amount corresponding to the expenditure saved due to the cancellation of the contract or acquired through a different appropriation of labour, or malicious failure to acquire.
6. Reservation of Ownership
6.1 The products supplied by msg remain property of msg until complete payment of all outstanding accounts has been made to msg, and also any accounts corresponding to earlier services and future outstanding accounts if they are connected to the products supplied.
6.2 If the property of msg expires due to incorporation or amalgamation, then the co-ownership is transferred proportionally to msg.
6.3 The client is entitled to resale if this does not infringe the contractual or license provisions of msg. However, pawning goods or the transfer of ownership as debt security is not allowed. Any amounts raised by resale are then ceded to msg to the sum of the outstanding accounts. The client is authorised, subject to revocation, to collect the outstanding amount ceded to msg in his or her own name. The client must immediately inform msg in writing of any compulsory execution of the reserved property.
6.4 If the value of the security of the outstanding account from msg rises above 20%, then msg is obliged, on the request of the client, to release any securities in this respect.
7. Liability
7.1 For damages arsing from incapacity, arrears, unenforceability or the infringement of any other contractual responsibilities, the liability of msg is limited with regard to the services listed in clause 1.1. to the sum of the respective contractual payment and also for such damages related to the services that are listed in clause 1.1.
7.2 The liability for lost of data will be limited to the normal costs of replacement, This is limited to the level of damage sustained in cases where reasonable safety measures such as backup copies have been effected.
7.3 msg is only liable for malicious or gross negligence, and also for that of its legal representatives and assistants, in so far as it is not the case of a breach of a cardinal obligation. In the case of a breach of a cardinal obligation, then msg is also liable for slight negligence for such damages as listed within the scope of the services in clause 1.1.
7.4 The liability limitations listed in clauses 7.1.-7.3. also apply to tortious liability against msg
1.1 The Terms and Conditions specified below apply exclusively to any business relations between msg and their clients; any conditions used by a client, which are variance do not apply, even if msg has not expressly stated that a client's conditions are invalid. The Terms and Conditions specified below apply especially to orders for consulting on systems, applications or organisation and/or for the installation, delivery or right to use hardware or individual, self-contained software programs or parts thereof. In case of doubt, terms and conditions agreed in a contract concluded betwenn both parties take precedence over the Terms an Conditions specified below.
1.2 Any changes, variations, and additions to concluded contracts, or to these Terms and Conditions, must be made in writing.
1.3 If any provision in the Terms and Conditions is or becomes invalid, the validity of the remaining Terms and Conditions is not be affected. The parties to the contract are obliged to replace any invalid provision with a valid provision. Any such changes must meet the contractual objective of both parties to the contract in a way that is most cost-effective for both parties.
1.4 German law alone applies to the contract, with the exclusion of the UN CISG on the purchase of goods.
1.5 The place of execution is Ismaning. The place of jurisdiction is Munich.
1.6 The rights and responsibilities resulting from the contract concluded between msg and the client can only be transferred to a third party with the agreement of the other party to the contract.
2. Placing and Execution of Orders
The services that msg has agreed to deliver, any deadlines and/or time limits, payment and any further conditions will be stipulated in an individual contract.
3. Duty to Examine and Notify; Scope of Services
3.1 If the client is a businessperson, then he or she is obliged, immediately after receipt of goods, to test any software or software components for any faults and to immediately inform msg in writing of any detectable fault.
3.2 Any notice of defect does not release the client from his or her payment obligation.
4. Purchase of Goods or Services, Warranty
4.1 If the services required by individual contract are a deliverable, then the client must purchase this deliverable after delivery by msg and notification of delivery or after notification of completion by msg. If the client does not purchases the deliverable, then he or she must inform msg of any concrete faults in a detailed description in a defect protocol immediately, or, at the latest, within 14 working days after installation. If msg does not receive either a purchase declaration or a defect report within this time limit, then the deliverable is considered as purchased. In the case of non-essential defects, the client may not refuse to purchase the deliverable. In the case of a contact of sale for standard software or hardware, the purchase must take place immediately after delivery.
4.2 The implementation of the deliverable, or, in the case of standard software or hardware, the installation, and/or the first utilization of the deliverable by the client, regardless of whether in its entirety or only in part, are equivalent to purchase.
4.3 The client is aware of the fact that given the range of applications and due to their great complexity, standard software cannot always be delivered in an error-free condition.
4.4 If an individual contract envisages the provision of services as separate and testable partial deliverables and their respective purchase, then msg is obliged to provide the partial deliverable after its completion and to inform the client or to request payment thereof. Furthermore, in these cases, with regard to partial deliverables, the same conditions apply as to the purchase of a complete deliverable as set out in clauses 4.1. and 4.2. of these Terms and Conditions.
4.5 In the case of an contract of work concluded with msg as an individual contract, msg is entitled to correct any occurring defects either by rectification or replacement.
4.6 In the case of a contract of sale concluded with msg as an individual contact, in the case of defect, the purchaser is authorised to exercise his or her right to chose between the rectification or replacement of the defect only after the agreement of msg has been given and under consideration of any mutual legitimate concerns.
4.7 If msg is not willing or able to rectify any defects, or the rectification of defects is not successful, then the purchaser is entitled to withdraw from the contract or to receive a commensurate reduction of the purchase price.
4.8 Any warranty claims of the client towards msg lapse after a period of 12 months. The limitation period begins with the purchase of the product or service or, if the nature of the deliverable excludes this, then with the completion of the deliverable; in the case of a contract of sale, the limitation period begins with the handover of the purchase. During the course of any negotiations concerning defects, the duration of the limitation period is inhibited. This inhibition has the effect that the period of time, during which the limitation period is inhibited, is not included in the calculation of the limitation period. In all other cases, statutory provisions apply.
4.9 If msg provides products or services that are not covered by the warranty, then msg is entitled to charge the client an appropriate sum according to the conditions of the individual contact. If payment by the hour, or by the day, is stipulated in the individual contact, then the hourly or daily rate as stipulated in the in the individual contact is the applicable rate.
5. Prices, Terms of Payment
5.1 All prices are in euro and exclusive of the respective valid value-added tax.
5.2 All invoices from msg are to be paid by the client, without any discounts, at the latest with 14 consecutive days, including weekends, from the date of issue.
5.3 If payment is delayed, msg is entitled to charge interest payable on arrears of 5% for private end-users, and 8% for retailers, above the relevant base interest rate of the German Bundesbank. msg has the right to charge higher interest arising from a further legal justification.
5.4 The client may not offset any counterclaims, unless this is justified by indisputable or legally binding claims.
5.5 If, after conclusion of an individual contract, msg becomes aware that there is risk of non-ability to pay on the part of the client, then msg is entitled to invoice the client for all services rendered up to that point in time. In such a case, msg is also entitled, within an appropriate time limit, to make the fulfilment of any further outstanding services dependent on the client providing securities or an advance payment. If, at the end of this time limit, payment has not been made, then msg is entitled to withdraw immediately from the respective individual contract.
5.6 In such a case, msg retains the right to demand that the agreed sum be paid. msg, however, must also allow the deduction of the amount corresponding to the expenditure saved due to the cancellation of the contract or acquired through a different appropriation of labour, or malicious failure to acquire.
6. Reservation of Ownership
6.1 The products supplied by msg remain property of msg until complete payment of all outstanding accounts has been made to msg, and also any accounts corresponding to earlier services and future outstanding accounts if they are connected to the products supplied.
6.2 If the property of msg expires due to incorporation or amalgamation, then the co-ownership is transferred proportionally to msg.
6.3 The client is entitled to resale if this does not infringe the contractual or license provisions of msg. However, pawning goods or the transfer of ownership as debt security is not allowed. Any amounts raised by resale are then ceded to msg to the sum of the outstanding accounts. The client is authorised, subject to revocation, to collect the outstanding amount ceded to msg in his or her own name. The client must immediately inform msg in writing of any compulsory execution of the reserved property.
6.4 If the value of the security of the outstanding account from msg rises above 20%, then msg is obliged, on the request of the client, to release any securities in this respect.
7. Liability
7.1 For damages arsing from incapacity, arrears, unenforceability or the infringement of any other contractual responsibilities, the liability of msg is limited with regard to the services listed in clause 1.1. to the sum of the respective contractual payment and also for such damages related to the services that are listed in clause 1.1.
7.2 The liability for lost of data will be limited to the normal costs of replacement, This is limited to the level of damage sustained in cases where reasonable safety measures such as backup copies have been effected.
7.3 msg is only liable for malicious or gross negligence, and also for that of its legal representatives and assistants, in so far as it is not the case of a breach of a cardinal obligation. In the case of a breach of a cardinal obligation, then msg is also liable for slight negligence for such damages as listed within the scope of the services in clause 1.1.
7.4 The liability limitations listed in clauses 7.1.-7.3. also apply to tortious liability against msg
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