1. General

(1) Die Lieferungen und Leistungen der MS-Consult EDV-Management und Systemberatung GmbH (nachfolgend MS-Consult) erfolgen ausschließlich zu den nachstehenden AGB, soweit nicht schriftlich etwas anderes vereinbart wurde. Sie werden auch dann Vertragsinhalt, wenn der Besteller von diesen abweichende Bedingungen verwendet. Abweichende Vereinbarungen bedürfen zu ihrer Wirksamkeit grundsätzlich unserer ausdrücklichen schriftlichen Bestätigung.

(2) The GTCs shall also apply to follow-up orders, irrespective of whether explicit reference is again made to these terms and conditions in the individual follow-up transaction.

2. order acceptance/offer

(1) Our offers are always non-binding. Drawings, illustrations, service descriptions, brochures, dimensional and weight specifications etc. belonging to the offer are only approximate, unless expressly agreed otherwise. We reserve the right of ownership and copyright to the offer and the associated documents. Disclosure, publication, duplication or realisation by third parties are not permitted.

(2) We reserve the right to make changes to the item described or illustrated at any time and without special notification, while retaining the essential characteristics. We reserve the right to correct any calculation or printing errors in the offer.

(4) A contract is only concluded upon our written order confirmation. It shall be governed exclusively by these terms and conditions, which are recognised by the customer by placing the order or accepting the ordered goods or services; this shall also apply if we do not expressly object to any other terms and conditions of the customer.

(5) MS-Consult ist berechtigt den Vertrag ganz oder teilweise nach Absprache mit dem Vertragspartner durch Dritte ausführen zu lassen.

(6) The contract is concluded when we confirm the order in writing within a period of three weeks, have carried out the delivery or service or have started to carry out the service or delivery.

(7) If we are neither in default of performance nor responsible for the impossibility of performance, the customer may only withdraw from the contract with our consent. New customers will only be supplied against cash on delivery/euro cheques until the credit check has been completed.

3. Delivery

(1) Details of delivery times or production dates shall only be binding if they have been confirmed by us in writing. All delivery dates are subject to correct and timely delivery to us. The delivery period shall be deemed to have been met if the goods have left the factory or distribution centre by the end of the delivery period or, in the case of the possibility of dispatch, readiness for dispatch has been notified.

(2) Partial deliveries are permissible.

(3) Official orders or measures, force majeure, strikes, lockouts, traffic or operational disruptions or shortages of raw materials and any other hindrance to delivery shall release us from the obligation to perform for the duration of the hindrance. If an impediment is not expected to cease in the foreseeable future, we shall be entitled to restrict or suspend delivery or to withdraw from the contract in whole or in part without the buyer being entitled to claims for subsequent delivery or compensation. We shall inform the purchaser immediately of any restriction of delivery or partial cancellation. He shall also have the right to refuse fulfilment of the remaining obligations if the partial delivery is of no value to him.

(4) If we exceed the agreed delivery time, the customer shall have the right to set a grace period of two weeks by registered letter and to withdraw from the contract after expiry of this period. Claims for compensation on the part of the purchaser due to delayed delivery or impossibility are excluded, unless this is due to grossly negligent or wilful breach of contract. A claim by the customer for damages due to delay in delivery is excluded in the case of ordinary negligence, otherwise liability is limited to the amount of the foreseeable damage, but no more than 5% of the delivery value.

4 Prices, transfer of risk

(1) We shall be bound to contractually agreed prices for our deliveries or services for four months. If the delivery date is agreed later or if the customer belongs to the group of persons mentioned in §24 of the General Terms and Conditions Act, we shall deliver or perform at our prices valid on the day of the transfer of risk without prior notification of the customer.

(2) Unless carriage paid delivery has been agreed, dispatch shall be for the account of the customer. In the case of all deliveries - even in the case of carriage paid or freight prepaid deliveries - the risk of accidental loss shall pass to the customer when the goods are handed over to the forwarding agent or carrier or to our own personnel designated to carry out the dispatch or transport.

(3) Insurance against damage of any kind shall only be taken out at the express request of the customer and at the customer's expense.

5 Obligations of the customer to co-operate

(1) The Client shall grant MS-Consult the necessary time and opportunity to perform its services. He shall provide all necessary and reasonable support during the preparation and execution of its work.

(2) Before carrying out work on its devices/programmes, the customer shall be responsible for carrying out backups on external data carriers. The customer shall provide all facilities required for carrying out the work (including telephone connections and transmission lines etc.) at its own expense.

6 Licence and copyrights

(1) The customer is entitled to use the programmes, drawings, process descriptions and other documents provided to him for the execution of the contract for the contractually intended use.

(2) All copyrights and further rights of use shall remain with MS-Consult. Any use, duplication and business secrets beyond the necessary contractual use - even after termination of the contract - shall be treated confidentially.

7. introduction of the EURO

(1) All payment obligations arising from the business relationship and other financial obligations in connection therewith shall be deemed to have been agreed in EURO or in the denomination valid in the Federal Republic of Germany as soon as the EURO has been introduced as the legal currency in the Federal Republic of Germany. In particular, all commercial business documents such as orders, order confirmations, invoices, credit notes etc. can be issued in EURO or in the denomination valid for the Federal Republic of Germany. Conversion from the contract currency into EURO shall be made on the basis of the official conversion rate. The conversion of the contract currency to the EURO shall not constitute grounds for cancellation, rescission or avoidance and shall not give rise to any claim to a contract amendment or renegotiation of contracts or other agreements.

(2) All provisions containing a reference to the discount rate of the Deutsche Bundesbank will be changed to a reference to the valid reference interest rate/base interest rate of the European Central Bank after the introduction of the EURO.

(3) Insofar as offsetting, netting or techniques of comparable effects are permitted, these may be carried out for monetary debts irrespective of their currency denomination if these are denominated in the EURO unit or a EURO denomination, with conversions being carried out at the official conversion rates.

8. warranty

(1) MS-Consult warrants that the contractual products are free from defects, including the absence of warranted characteristics. The contractual products shall be manufactured with due care. However, the parties are aware that it is not possible, given the state of the art, to exclude errors in the software under all conditions of use.

(2) MS-Consult warrants that the contractual products are described in the product information in a generally accurate manner and are generally fit for use in this context. The technical data and descriptions in the product information alone do not constitute a guarantee of specific properties. An assurance of properties in the legal sense is only given if the respective information has been confirmed in writing by MS-Consult.

MS-Consult does not guarantee that the programme functions will meet the customer's requirements or that they will work together as selected by the customer.

(3) Excluded from the warranty are in particular defects or damage that are attributable to

operational wear and tear / improper use, operating errors and negligent behaviour on the part of the customer / operation with the wrong type of current or voltage and connection to unsuitable power sources / fire, lightning, explosion or mains-related overvoltage / moisture of any kind / incorrect or faulty program, software and/or processing data and any consumable parts, unless the customer proves that the circumstances are not the cause of the defect complained of.

(4) The warranty shall also be void if the serial number, installation keys, type designation or similar markings are removed, manipulated or rendered illegible.

(5) Warranty claims against MS-Consult shall commence upon delivery to the customer and shall expire six months after delivery. They are not transferable.

Irrespective of this, MS-Consult shall pass on any further guarantee and warranty commitments of the manufacturer to the customer in full, without being liable for them itself.

(6) In the event of a warranty claim, MS-Consult may choose between repair or replacement. Replaced parts shall become the property of MS-Consult. If MS-Consult fails to rectify defects within a reasonable period of grace set in writing, the customer shall be entitled to demand either cancellation of the contract or a reasonable reduction in the purchase price.

(7) In the event of rectification, MS-Consult shall bear the labour costs. The customer shall bear all other costs of rectification as well as the ancillary costs associated with the replacement delivery, in particular the transport costs for the replacement part, insofar as these other costs are not disproportionate to the order value.

(8) If the examination of a notice of defect shows that a warranty case does not exist, MS-Consult shall be entitled to have all expenses reimbursed upon request. The costs of inspection and repair shall be charged at MS-Consult's current service prices.

(9) All further claims of the customer or claims other than those provided for in these provisions, irrespective of their legal basis, are excluded, unless otherwise provided for in these provisions.

(10) When claiming warranty/guarantee as well as for chargeable repair orders and returns of any kind, the customer must observe the processing guidelines of MS-Consult or the corresponding procedures of the product manufacturer.

9. liability

(1) The liability of MS-Consult shall be limited to such damages as could reasonably be expected to occur at the time of conclusion of the contract according to the circumstances known at that time.

MS-Consult is not liable for indirect damages, consequential damages or loss of profit.

(2) The liability of MS-Consult for intentional or grossly negligent behaviour, for warranted characteristics and in accordance with the provisions of the Product Liability Act shall remain unaffected by the aforementioned limitations of liability. If MS-Consult breaches an essential contractual obligation. MS-Consult's obligation to pay compensation for property damage and personal injury shall be limited to the compensation provided by its liability insurance. The obligation to pay compensation shall in any case be limited to the damage foreseeable at the time of conclusion of the contract. The personal liability of MS-Consult members who have acted as vicarious agents of MS-Consult is excluded.

(3) Claims for damages shall lapse six months after delivery or provision of the service.

10. Data protection

(1) In accordance with § 33 of the Federal Data Protection Act of 20 December 1990 (BGB I 1990 I, p. 2954 ff), MS-Consult shall inform the client that MS-Consult has stored data of the client required for the execution of the order.

(2) MS-Consult undertakes that the client's data will not be passed on and that data protection secrecy extends beyond this order. If devices are provided for the purpose of repair, installation, etc., they shall be secured against access by unauthorised persons. The duty of confidentiality shall remain in force even after termination of the business relationship.

11 Payment, delay

(1) Unless other terms of payment are stated in the offer or order confirmation, all invoices shall be payable immediately without deduction.

(2) If, after conclusion of the contract, justified concerns arise with regard to the creditworthiness of the customer or his financial circumstances, we shall be entitled, at our discretion, to demand advance payment or security from the customer within one week. We also have the option of interrupting the execution of the order and demanding immediate settlement; in the event of refusal, we are entitled to withdraw from the contract. In this case, the customer shall not be entitled to claim damages.

(3) The retention of payments by the buyer with counterclaims of any kind is excluded in any case. Offsetting is only permitted with counterclaims recognised by us in writing or legally established.

(4) In the event of default of payment, default interest of 5% above the respective discount rate of the Deutsche Bundesbank shall be due. In the case of merchants, interest on arrears shall be charged in the same amount after receipt of the goods or from the agreed due date, if applicable, provided that a mutual commercial transaction exists (§ 353 HGB).

(5) Our claims shall become due in full immediately - even in the event of deferment - as soon as the customer defaults on the fulfilment of one or more obligations, bills of exchange or cheques are protested, the customer ceases payments,

is over-indebted, composition or bankruptcy proceedings have been opened against his assets or the opening of such proceedings has been refused due to lack of assets. In the above-mentioned cases, we are entitled to reclaim goods subject to retention of title and to withdraw from the contract.

12. Reservation of ownership

(1) We reserve title to the delivered goods until payment of all claims arising from the business relationship between the parties, including claims arising from earlier deliveries or services. The customer may not dispose of the goods subject to retention of title unless they have been delivered to him with the stipulation that they may be processed, installed or resold in the ordinary course of business.

(2) If the goods subject to retention of title are seized, the customer must inform us immediately and comprehensively and make the third party aware of our rights. Any costs incurred by our intervention shall be borne by the customer.

(3) The handling and processing of goods subject to retention of title shall be carried out for us without any obligation on our part.

(4) In the event of resale of the goods, the customer hereby assigns to us his claims against his customer up to the amount of the claims arising from this contract. We are authorised and the customer is obliged at our request to notify the customer of the assignment in writing. If applicable, the customer shall also reserve title to the goods through his customer by way of extended retention of title.

13. final provisions

(1) All ancillary agreements and contract amendments are only valid in writing.

(2) The contract and our terms and conditions shall remain valid even if individual provisions are invalid. Should individual provisions of these General Terms and Conditions be invalid, this shall not affect the remaining provisions. Any ineffective provisions or loopholes shall be replaced by provisions that come as close as possible to the economic purpose pursued by the ineffective provisions in a legal manner.

(3) The place of fulfilment and jurisdiction for both parties is the registered office of our commercial branch. This shall also apply to all obligations arising from bills of exchange and cheques.

(4) The place of jurisdiction shall be the court responsible for our place of business according to the respective amount in dispute. In the case of non-merchants, this place of jurisdiction shall only apply to dunning proceedings.