General Terms and Conditions for IT Services of MSP AG
Section 1 General Provisions – Application
(1) These General Terms and Conditions (IT GTC) only apply to entrepreneurs, legal persons under public law and special funds under public law within the meaning of Section 310(1) of the German Civil Code [Bürgerliches Gesetzbuch (BGB)] (hereinafter referred as “Customer”).
(2) All goods and services provided by MSP AG, including any future business relationships with the Customer, are governed exclusively by these IT GTC; any terms and conditions of the Customer contrary to or differing from our IT GTC are not recognized unless we expressly agree to their application in writing. Our IT GTC shall also apply if we perform the services without reservation in the knowledge of terms and conditions of the Customer that conflict with or deviate from our IT GTC.
(3) Insofar as special conditions also apply to certain services of MSP AG, these shall take precedence over these IT GTC in case of doubt.
Section 2 Offer, Contract Conclusion and Service Scope
(1) Our offers are non-binding. If an order of the Customer constitutes an offer under Section 145 of the German Civil Code, we may accept this offer within 2 weeks. A contract is only concluded through acceptance of the Customer’s order or by shipping the goods. This also applies if we provide technical documentation (e.g., drawings, data sheets, specifications), other product descriptions or documents - including in digital form - whose property rights and copyrights are reserved by us.
(2) The scope of contractually owed performance is specified by the order confirmation and, if applicable, additional service descriptions of MSP AG which may also be provided electronically. If none of these are present, the scope is specified by our offer.
Section 3 Prices and Payment Conditions
(1) Our prices are plus VAT and, for goods deliveries, plus transport and packaging costs. Discounts or other deductions are not granted.
(2) We reserve the right to adjust our prices accordingly if cost increases occur after conclusion of the contract, in particular due to collective wage agreements, changes in material prices, changes in distribution costs or exchange rate fluctuations. We shall be obliged to proceed in the same way in the event of cost reductions.
Evidence of cost reductions or increases will be provided to the Customer if requested. Increases by more than 10% allows the Customer to withdraw from the contract or to terminate the contract extraordinarily.
(3) Invoices must be paid within 7 days of receipt. Payment by check or bill of exchange is not accepted.
(4) In case of default, the Customer must pay default interest of 9% above the base rate in accordance with Section 247 of the German Civil Code. We reserve the right to claim further compensation for damages.
(5) If the Customer defaults on payments, we may, with prior announcement, withhold any remaining goods or services or require additional non-agreed advance payments, unless the Customer proves not to have been responsible for the default. The same applies if deterioration of the Customer’s financial situation, which occurs or becomes known after contract conclusion, threatens payments; this especially applies in case of enforcement measures or insolvency proceedings against the Customer.
(6) If the Customer defaults on acceptance or fails to cooperate, we may obtain compensation for the resulting damages, including for additional costs. Further rights and claims remain reserved.
Section 4 Performance
(1) Delivery and performance periods are the dates or periods specified in the order confirmation. The cost and risk of goods transport must be borne by the Customer.
(2) If goods delivery or service performance are delayed or prevented by unforeseen circumstances for which we are not responsible, such as force majeure, strikes, natural desasters or third-party supply problems, we may fully or partially withdraw from or extraordinarily terminate the contract without notice. The Customer may agree on an extended delivery/performance period with us and bear the resulting additional costs; claims to compensation from us are excluded in such cases.
(3) If we owe a divisible service, partial services are permissible to a reasonable extent if there are objective reasons. Partial deliveries/partial services may be invoiced separately by us.
(4) If it has been agreed that a down payment or advance payment is a prerequisite for the provision of our services, the performance period shall not commence until the corresponding amount has been credited to our business account, subject to a separate agreement. Any delivery/performance date will be postponed accordingly.
Section 5 Transfer of Risk for Purchases
(1) If goods are shipped at the request of the Customer, risk of random loss or destruction of the goods will be transferred to the Customer when the goods are shipped or, at the latest, leave the warehouse. This applies irrespective of whether the goods are shipped from the place of performance and/or who bears the freight costs.
(2) If requested by the Customer, we will provide transport insurance for the shipment; the necessary costs must be borne by the Customer.
(3) If the requirements of Section 3(6) are fulfilled, risk of random loss or destruction will be transferred to the Customer when the Customer defaults on acceptance.
Section 6 Software Delivery
In addition to these IT GTC, express reference is made to the special licence, copyright and other conditions, such as guarantees of the respective manufacturer, when software is delivered.
Section 7 Integration of the Customer’s Hardware and Software
Existing hardware or software of the Customer may be integrated by us if the technical requirements are fulfilled. We reserve the right to refuse to integrate devices and data processing programs that do not fulfill the requirements or may cause errors of the IT structure. Any additional costs caused by the integration of existing hardware/software will be charged separately at the applicable hourly rate plus VAT and, if necessary, for additional hardware and software components and, if necessary, costs and expenses.
Section 8 Customer’s Duty to Cooperate
(1) When describing, identifying, and reporting errors, the Customer must follow our specified procedures and, if necessary, our provided checklists or instructions.
(2) The Customer must specify the error messages and questions by qualified personnel.
(3) During necessary test runs, the Customer must be present in person or assign qualified employees for this purpose, who are authorized in particular to judge and make final decisions on defects, function enhancements, function reductions, as well as changes to the hardware and software structure.
(4) For the purposes of risk-prevention, the Customer must regularly make appropriate backups and maintain an adequate backup and/or emergency system for software used. The Customer must especially protect all data against interference from us to an appropriate and necessary (temporal) extent.
(5) We must be granted necessary access to the Customer’s software and hardware via telecommunication. The Customer must establish the required connection according to our instructions.
Section 9 Liability for Defects
(1) Defect claims require the Customer to inspect goods immediately upon receipt.
(2) Insofar as the performance has a defect which already existed at the time of the transfer of risk, we will, at our discretion, provide rectification or replacement deliveries if the defect is reported in time. We shall always be given the opportunity to remedy the defect twice within a reasonable period of time. Claims under a right of recourse shall remain unaffected by the above provision without restriction. In case of rectification, we must bear all necessary costs, especially transport, labour, material costs and road charges, unless increased by performance at a location other than the place of performance.
(3) As far as reasonable for the Customer, the rectification can be carried out by instructions for action which the Customer can implement himself to eliminate a defect. Such instructions for action are possible in particular if the Customer can eliminate the defect with minimal effort or if noticeable effects of the defect can be avoided by immediate realization of the instruction for action. A temporary workaround solution shall be deemed to be a defect remedy if the use is not significantly restricted thereby and the workaround solution is reasonable for the Customer.
(4) If the subsequent performance of a contract fails, the Customer may obtain price reductions or withdraw from or, in extraordinary cases, terminate the contract - without prejudice to further claims to compensation.
(5) Defect claims are not established for insignificant, customary and technically-unavoidable differences from the agreed quality or for insignificant impairment of usability, natural wear or damage caused after the transfer of risk through incorrect, negligent or excessive use, inappropriate equipment or other external influences not covered by the contract. Defect claims are also not established for improper maintenance or changes by the Customer or third parties.
(6) Should complaints be unfounded and not caused by us, the Customer must reimburse us for the costs we incurred in connection with the alleged subsequent performance and deemed necessary by us under the circumstances.
(7) We are liable as required by law for intent and gross negligence, including of our representatives and vicarious agents. Unless we are not charged with a breach of contract, our liability for damages is limited to typical and foreseeable damages.
(8) We are liable as required by law, if we culpably breach essential contractual obligations; also in this case, our liability for damages is limited to typical and foreseeable damages.
(9) Defect claims have a limitation period of 12 months after transfer of risk.
Section 10 Further Liability
(1) All further claims for compensation by the Customer are, irrespective of the legal grounds, especially breach of duties arising from the contractual obligation and from tort, shall be excluded subject to the following provisions:
(2) This does not apply in case of mandatory liability, such as under the German Product Liability Act [Produkthaftungsgesetz (ProdHaftG)] or in case of intent, gross negligence or injury to life, body or health.
(3) For simple negligence, we are liable in case of a violation of an obligation necessary for the achievement of the purpose of the contract (essential contractual obligation). However, claims to compensation for violations of essential contractual obligations are limited to typical contractual and foreseeable damages.
(4) A change in the burden of proof to the detriment of the Customer is not associated with the above provisions.
(5) Where our liability is excluded or limited, the same applies to the personal liability of our employees, representatives, and vicarious agents.
Section 11 Acceptance
(1) Partial acceptance is possible at any time if requested by MSP AG.
(2) For the purpose of timely planning of the instruction and the acceptance test, MSP AG shall notify the Customer in due time at least one (1) week before the planned acceptance of the readiness for acceptance and shall make concrete proposals for dates when and how exactly the instruction and acceptance can take place.
(3) After a successful inspection, the Customer must report readiness to accept the work results at least by email. Should overall or partial acceptance fail, the Customer must submit a list of defects preventing acceptance to MSP AG.
(4) Acceptance may be subject to the following error categories:
Error Category 1 (significant errors):
Contractual use is not possible or unreasonably limited or impaired.
Error Category 2 (insignificant errors):
Contractual use not significantly limited or impaired.
Errors and defects must be assigned to the above error categories mutually between the contracting parties. Errors and defects of Error Category 1 constitute “significant errors” that prevent acceptance. Errors and defects of Error Category 2 are “insignificant errors” that do not prevent acceptance.
(5) The Customer and MSP AG shall draw up a joint acceptance report on the result of the acceptance with a description of the detected defects as well as their type, scope and deadlines for their elimination.
(6) Modified or adjusted software or increments thereof will be deemed accepted if used for the Customer’s operations (productively).
Section 12 Retention of Title
(1) The item shall remain our property until all claims against the Customer arising from the concluded contract have been settled in full. As long as this retention of title exists, the Customer may not resell the item or otherwise dispose of or transform the goods. If the Customer is a merchant, ownership shall not pass to him until he has settled all his liabilities arising from the business relationship with us.
(2) The Customer must inform us without undue delay of any seizure, confiscation or other enforcement or interference by third parties. If the third party is unable to refund our court or out-of-court costs for legal action in accordance with Section 771 of the German Code of Civil Procedure [Zivilprozessordnung (ZPO)], the Customer will be liable for our resulting losses.
(3) The Customer already hereby assigns to us any claims to which we are entitled with regard to the reserved goods (e.g., from tort, insurance claims) in the amount of the invoice value. We accept this assignment.
Section 13 Exclusion of Sentence 1 of Section 648 of the German Civil Code
Insofar as we provide work services, the application of Sentence 1 of Section 648 of the German Civil Code is excluded. The possibility of extraordinary termination without notice pursuant to Section 648a of the German Civil Code shall remain unaffected.
Section 14 Final Provisions
(1) If the Customer is a merchant, a legal entity under public law or a special fund under public law, our place of business shall be the place of jurisdiction; however, we shall also be entitled to sue the Customer at the court of its place of business.
(2) The law of the Federal Republic of Germany applies under exclusion of conflict of laws of German private international law and the United Nations Convention on Contracts for the International Sale of Goods.
(3) Unless specified otherwise by the order confirmation, the place of performance is our registered office.
(4) Should individual clauses of these IT GTC be or become fully or partially ineffective or in case of a gap in the contract, the validity of the remaining provisions will remain unaffected.
Hamburg, April 2023