Terms of service
MSV GmbH – Uedemer Straße 22 – 47627 Kevelaer
1. Exclusive validity and acknowledgement of our General Terms and Conditions
1.1 All our offers are based on our General Terms and Conditions. We accept orders exclusively on these terms. The customer's general terms and conditions, or terms of the customer deviating from or supplementing our General Terms and Conditions, or side agreements, are only binding for us if we expressly acknowledge them in writing. This also applies if we carry out the deliveries without reservation despite being aware of the customer's deviating terms.
1.2 By placing an order or accepting deliveries, the customer acknowledges the validity of our General Terms and Conditions not only for the transaction in question but also for all future transactions.
2. Offers – side agreements – contract content – offer documents
2.1 Our offers are subject to change in the sense that a contract is only concluded once we accept the order. The customer's order is binding. We are entitled to accept this offer within two weeks by sending an order confirmation, or to send the customer the ordered delivery item within this period.
2.2 To be valid, side agreements to our offers and order confirmations require our written confirmation. In cases of doubt, only our written order confirmation is decisive for the content of the contract.
2.3 We reserve all title and copyright to documents attached to our offers (illustrations, drawings, dimensions and weight specifications and the like). They may not be made accessible to third parties and must be returned to us without delay on request or if the order is not placed with us.
2.4 Unless expressly agreed otherwise, information published by us in catalogues or other publications in text or image form (e.g. descriptions, illustrations, drawings) conclusively characterises the properties of the goods we deliver and their possible uses. Other information is also not binding. Our information does not constitute a durability or quality guarantee and reflects our current state of knowledge. We are not liable for the success of any use. We reserve the right to make changes on the basis of technical progress. Drawings, illustrations, dimensions, weights or other performance data are only binding if this is expressly agreed in writing.
2.5 Information and advice regarding our products is provided on the basis of our previous experience. The values stated in this context, in particular performance data, are average values determined by us. Suitability tests of the delivered goods and compliance with processing instructions are not rendered unnecessary by information or advice.
3. Prices and payment
3.1 Unless otherwise agreed, our prices apply for delivery ex works, but excluding freight, packaging, insurance and value added tax. Statutory value added tax will in any case be charged additionally by us at the rate applicable on the day of performance.
3.2 The agreed prices are based on the wage, material and energy costs applicable at the time the contract is concluded. If such costs increase up to the time of performance, we may charge a price increased proportionately in line with the percentage share of these costs in the agreed price. On request, we will provide evidence of the price increase.
3.3 Subject to differing agreements and subject to the customer's sufficient creditworthiness, our services are to be paid for without deduction no later than 30 days after their performance. If payment deadlines are exceeded, we charge default interest of 8 percent p.a. above the respective base interest rate pursuant to § 247 of the German Civil Code (BGB). We reserve the right to assert further damages, in particular for all costs of legal action. Our field staff are not authorised to accept payments. Cash discount arrangements only apply if the customer is not in arrears with the payment of earlier services.
3.4 If the customer's creditworthiness appears doubtful, we may, at our option, demand advance payment or securities. The same applies if the customer fails to meet a payment obligation owed to us when due. If one of these cases occurs, all our claims against the customer, including those from other transactions, become due immediately; insofar as we have accepted bills of exchange that are not yet due, we may demand immediate payment against return of the bills of exchange.
3.5 Insofar as we accept cheques or bills of exchange, this is always done only on account of payment, but not in lieu of performance. In these cases, we are not responsible for timely presentation or protesting. The costs of discounting and collection are borne by the customer; he must reimburse these amounts without delay on request. We are entitled to return bills of exchange if their acceptance is refused by the German Bundesbank.
3.6 The customer is not entitled to set off against our payment claims or to exercise a right of retention over amounts due. This does not apply to set-off with undisputed claims or claims established with final legal effect.
4. Performance periods and dates
4.1 Periods and dates agreed for our services are only approximate, unless they are expressly designated as binding.
4.2 A performance period defined only by its duration begins at the end of the day on which full agreement is reached on all details of the order content, at the earliest with our acceptance of the order, but not before the provision of the documents, permits and releases to be procured by the customer, and not before receipt of any down payment to be made by the customer.
4.3 A delivery period or delivery date is deemed to have been met if the goods have left our works or sales warehouse before the expiry of the period, or, in cases where the goods cannot or should not be dispatched, if notification of our readiness to deliver has reached the customer within the delivery period.
4.4 In the case of periods and delivery dates that are not expressly designated as "fixed" in the order confirmation, after they are exceeded the customer must set us a reasonable grace period for delivery/performance. Only after this grace period has expired can we be in default.
4.5 If performance is delayed by circumstances beyond our personal control (such as war, fire, strike, lack of means of transport, general shortage of supplies, operational disruptions and the like), or which become known to us through no fault of our own only after conclusion of the contract, the performance period is extended or the performance date is postponed by the duration of the impediment and a reasonable start-up time; this also applies to delays that occur because we ourselves are not supplied correctly or on time through no fault of our own. If such circumstances arise after we are in default, the consequences of default are excluded for this period. After the expiry of a reasonable period, either contracting party may withdraw from the contract. We will inform the customer without delay of the existence of such circumstances and, in the event of our withdrawal, will refund consideration already received without delay.
4.6 If we are in default with performance, the customer may withdraw from the contract, provided we are responsible for the delay. At our request, the customer is obliged to declare within a reasonable period whether, after expiry of the period, he will withdraw from the contract due to the delay in delivery and/or demand damages in lieu of performance or reimbursement of expenses, or whether he insists on delivery. If the customer does not exercise his rights in good time, we are no longer obliged to deliver the purchased item or to provide subsequent performance.
4.7 The customer cannot derive any claims for damages against us from the exceeding of a performance period or a performance date, or from default in performance, except in cases of intent, gross negligence, including that of one of our legal representatives or vicarious agents, or in the case of injury to life, body or health. If the delivery date constitutes an essential contractual obligation, clause 8.2 applies accordingly.
4.8 After the expiry of one month from dispatch of the notification of our readiness to deliver, we charge storage fees amounting to 0.5% of the invoice amount for each month of delay commenced.
4.9 If the customer is in default of acceptance or violates other duties to cooperate, we may demand compensation for the damage incurred by us as a result and, after setting a reasonable grace period and issuing a corresponding warning, freely dispose of the goods.
4.10 Partial deliveries are permissible to a reasonable extent and may be invoiced separately.
4.11 If we are to deliver parts according to a drawing or sample, the delivery quantity, which we also invoice and which the customer must pay for, may exceed or fall short of the order quantity by up to 10%, but by at least two pieces per dimension.
5. Insurance – dispatch – transfer of risk – return of packaging
5.1 On request and at the customer's expense, we insure shipments of goods against the usual transport risks, with the exception of deliveries abroad, by forwarding agents, our own vehicles and collections.
5.2 If we receive no special dispatch instructions, we dispatch the goods by the shipping route we consider most favourable at our discretion. The goods are dispatched at the customer's expense and risk.
5.3 The risk of loss or deterioration of the goods for which we are not responsible passes to the customer upon loading at our works or, if the goods cannot or should not be dispatched, upon the customer's receipt of the notification of our readiness to deliver. This also applies where carriage-free delivery has been agreed or where further services, e.g. installation, are undertaken.
5.4 Insofar as we are obliged under the Packaging Ordinance to take back packaging, the customer bears the costs for the return transport of the used packaging.
6. Retention of title
6.1 The goods delivered by us remain our property until full settlement of all our claims arising from the business relationship with the customer, even if they have been included in a current account. In the case of the issuance of bills of exchange and cheques, our claim for which we have accepted the bill of exchange or cheque is only deemed settled upon its redemption.
6.2 If, through processing or transformation of the goods delivered by us with goods of the customer, we do not acquire co-ownership or sole ownership but lose our ownership, the customer's ownership or co-ownership of the new item passes to us immediately upon its creation. The customer hereby assigns to us in advance all expectant rights that may lead to such acquisition of ownership or co-ownership by the customer. The transfer possibly required for the acquisition of ownership or co-ownership by us is replaced by the agreement that the customer holds the item in custody for us like a borrower, or, insofar as the customer does not possess the item, by the assignment, already agreed herewith, of the claim for surrender against the possessor to us. The ownership or co-ownership arising for us is to be treated legally like the original goods.
6.3 All claims of the customer arising from a resale of goods to which we hold ownership or co-ownership (reserved goods) pass to us upon conclusion of the sale transaction, regardless of whether the goods are sold to one or more purchasers. In the event that the reserved goods do not belong entirely to us or are sold together with goods not belonging to us, the assignment covers the counterclaim only up to the amount of the invoice value of the reserved goods. The customer may collect the assigned claims. We may revoke this authorisation if the customer fails to punctually fulfil an obligation owed to us, or if circumstances become known to us that make our rights appear endangered.
6.4 We undertake, at the customer's request, to release the securities to which we are entitled under the above rules (goods and claims) at our discretion, insofar as their value exceeds the claims to be secured by more than 10%. The realisable value (security value) of the securities is decisive for their valuation.
6.5 If our retention of title loses its validity in the case of deliveries abroad or for other reasons, the customer is obliged to grant us without delay a security interest in the delivered items or other security for our claims that is effective under the law applicable at the customer's place of business and that comes as close as possible to the retention of title under German law.
7. Material defects and defects of title
7.1 We provide the promised services in accordance with the state of the art applicable at the time the order is placed, as well as the relevant legal provisions and observing the care customary in the industry. With regard to item, quality and other specifications as well as technical and commercial descriptions, we only assume a quality or durability guarantee if the individual specification or description is expressly designated as a "quality or durability guarantee".
7.2 Insofar as our service has a material defect or defect of title (hereinafter: defect) whose cause already existed at the time of the transfer of risk, the customer is entitled, at our option, to subsequent performance by rectification (elimination of the defect) or replacement delivery. We bear the expenses necessary for this, such as labour, material, transport and travel costs, only insofar as these expenses are not increased by the fact that a delivery item was subsequently taken to a place other than the customer's place of business, unless such transfer corresponds to the intended use. Replaced parts become our property and must be returned to us.
7.3 If the subsequent performance or rectification fails, the customer is entitled, at his option and without prejudice to any claims for damages and reimbursement of expenses pursuant to clause 8, to reduce the remuneration (price reduction) or to withdraw from the contract.
7.4 The precondition for our liability for defects is that:
a) the defects are not based on improper use, faulty assembly or commissioning, negligent handling, or the use of unsuitable operating materials or replacement materials by the customer or third parties, natural wear and tear, or chemical, electrochemical or electrical influences – insofar as these circumstances are not attributable to our fault.
b) the customer has properly complied with his inspection and notification obligations owed under § 377 of the German Commercial Code (HGB). Defects must be notified in writing within 8 days of receipt of the delivery item at the destination, or, if they were not identifiable during a proper inspection, within 8 days of their discovery.
c) the customer – taking into account a reasonable warranty retention pursuant to clause 7.8 – is not in default of payment.
7.5 The customer must, after consultation with us, give us the time and opportunity required to carry out all repairs and replacement deliveries that appear necessary to us in our reasonable discretion. Otherwise we are released from the consequences of any damage arising because the customer did not give us the time and opportunity required to carry out the necessary measures to remedy defects or replacement deliveries. Only in urgent cases where operational safety is endangered and to avert disproportionately large damage – in which case we are to be notified immediately – or if we are in default with the elimination of the defect, does the customer have the right to remedy the defect himself or have it remedied by third parties and to demand from us reimbursement of the necessary costs.
7.6 With the exception of the claims for damages and reimbursement of expenses governed in clause 8, claims due to material defects become time-barred one year after delivery. For replacement items or rectification, we are liable until the expiry of the limitation period applicable to the original delivery item.
7.7 The customer's rights of recourse against us pursuant to § 478 BGB exist only insofar as the customer has not made any agreements with his purchaser that go beyond the statutory claims for defects. Clause 7.2 sentence 2 applies accordingly. If the customer is held liable due to a defect in the newly manufactured delivery item, he is obliged to inform us of this without delay. He must impose a corresponding obligation on his purchasers, insofar as they are entrepreneurs. We reserve the right to satisfy the claims asserted by the purchaser against the customer by way of self-substitution. In this case, the satisfaction of the purchaser's claims is deemed to be the satisfaction of any claims of the customer.
7.8 In the case of notifications of defects, payments by the customer may only be withheld to an extent that is reasonably proportionate to the defects that have occurred.
8. Claims for damages and reimbursement of expenses
8.1 We are liable in accordance with the statutory provisions insofar as the customer asserts claims for damages or reimbursement of expenses (hereinafter: claims for damages) based on intent or gross negligence – including intent or gross negligence of our representatives or vicarious agents. Furthermore, we are liable in accordance with the statutory provisions if we have culpably violated an essential contractual obligation, as well as in cases of injury to life, body or health and insofar as we have assumed guarantees.
8.2 Damages for the violation of an essential contractual obligation are limited to the foreseeable damage typically occurring, insofar as there is no intent or gross negligence and insofar as there is no liability for injury to life, body or health or arising from guarantees assumed. In this respect, these claims for damages become time-barred within one year.
8.3 Otherwise, liability for damages – regardless of the legal nature of the asserted claim – is excluded. In this respect, we are in particular not liable for damage that has not arisen to the delivery item itself, such as lost profit and other financial losses of the customer.
8.4 The mandatory provisions of the German Product Liability Act (Produkthaftungsgesetz) remain unaffected.
8.5 The customer's claims for reimbursement of expenses are limited to the amount of his interest in the performance of the contract.
9. Place of performance – place of jurisdiction – applicable law
9.1 The place of performance for all obligations arising from the contractual relationship, in particular delivery and return of packaging and payment, is Kevelaer.
9.2 The exclusive place of jurisdiction for all disputes about and arising from the contract, including for proceedings involving bills of exchange and cheques, is Kevelaer. However, we also have the right to sue the customer at any other place of jurisdiction applicable to him.
9.3 In the case of international transactions, the entire contractual relationship is subject to the law of the Federal Republic of Germany, unless another legal system mandatorily applies. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.