General terms and conditions of MBFG GmbH & Co. KG
1. General, scope
1.1. These general terms and conditions apply to all declarations of intent, contracts and legal or similar transactions of MBFG GmbH & Co. KG (hereinafter referred to as "MBFG") with its customers (hereinafter referred to as "customer"). Conditions of the customer which conflict with or deviate from the General Terms and Conditions of the MBFG are rejected, unless the MBFG has expressly agreed to their validity in writing. The general terms and conditions of the MBFG are also effective if the MBFG unconditionally carries out the delivery, service or advisory service in the knowledge of conditions of the client that conflict with or deviate from these general terms and conditions.
1.2. With regard to its consulting activities, the MBFG is entitled to have consultancy contracts carried out by fully qualified employees or commercial / freelance cooperation partners (in whole or in part). The cooperation of specialized colleagues must be agreed in writing.
1.3. Within the scope of his duties to cooperate, the client ensures that the organizational framework, when fulfilling consulting orders at his place of business, permits the most undisturbed work possible, which promotes the rapid progress of the advisory process. The client takes care of all the prerequisites for the MBFG to be provided in a timely manner, even without a special request, for all documents necessary for the fulfillment and implementation of advisory orders and to be informed about all processes and circumstances that are important for the execution of the order. This also applies to all documents, processes and circumstances that only become known during the work of the commissioned consultant. The requirements also include the appointment of a contact person who is available to the MBFG during the agreed activities.
1.4. The contractual partners undertake to be loyal to one another and, in this sense, to take all measures that are suitable to prevent the independence of the cooperation partners and employees of the MBFG from being endangered. This applies in particular to offers made by the client to hire or accept orders for his own account.
1.5. The MBFG retains copyright on its services. In view of the fact that the consulting services provided are the intellectual property of MBFG, the right to use them, even after payment of the fee, applies exclusively for the client's own purposes and only to the extent specified in the contract. Every transfer that is nevertheless made, also in the course of a dissolution of the company or bankruptcy, but also the short-term transfer for reproduction purposes entails claims for damages.
1.6. The general terms and conditions of the MBFG also apply to future business with the customer starting from the first inclusion.
2. Conclusion of contract, scope of delivery
2.1. Information on the website or in other MBFG advertising media does not constitute binding contractual offers. When placing an order or placing an order, the customer submits a binding offer for the conclusion of the contract. MBFG can accept this offer within four weeks of receipt of the order. A contract with the customer is concluded through a written or text confirmation of an order from MBFG. Sending the ordered products or an invoice to the customer is equivalent to an order confirmation. For the contractual relationship in relation to software products, the customer and the MBFG, unless expressly agreed otherwise, are governed by the provisions of the software transfer in accordance with the sales law.
2.2. In case of doubt, the scope of delivery results from the product id's laid down in the order confirmation and, in this respect, from the product specifications or descriptions of the scope of consulting assigned to the MBFG. The content of the order confirmation is decisive for the content of the contract. Verbal recommendations on the hardware or third-party software available at the client are non-binding for MBFG in relation to the customer and do not constitute any claims for fulfillment or compensation. In the case of commissioned consulting support, the object of contractual fulfillment is the professional and professional advice, not a specific result or a specific success. The MBFG is entitled to use expert employees / third parties to carry out its order. The MBFG reserves the right to select qualified employees / third parties.
2.3. The MBFG determines its location of work. If necessary, this can be at the registered office of the client for the relevant period / current order for documentation, information or advice purposes. The MBFG organizes its working hours at its own discretion.
2.4. MBFG is authorized to process the personal data entrusted to it within the scope of the purpose of the order or to have it processed by third parties. According to the provisions of the GDPR, the MBFG guarantees the obligation to maintain data secrecy. Further information can be found in our data protection declaration.
3. Prices, terms of payment, late payment, offsetting, right of retention, assignment
3.1. The prices of the order confirmation are decisive. Orders for which fixed prices have not been expressly agreed are calculated at the list prices valid on the day of delivery or service.
3.2. In return for the provision of all advices and consulting services, the MBFG is entitled to payment of a reasonable fee by the client. The remuneration is determined according to the contractual agreements. If there is no concrete remuneration agreement, the contractor owes the amount that is customarily paid for the respective activity.
3.3. The MBFG is entitled to demand reasonable installment payments for the services it provides, even without an express contractual agreement. An amount is deemed appropriate which corresponds to the scope of the work performed in relation to the contractually owed work.
3.4. If the execution of the order is prevented by the client after the contract has been signed (e.g. due to termination), the MBFG nevertheless still gets the agreed fee in the case of consulting services. If the order is not executed due to circumstances that represent an important reason on the part of MBFG, it is only entitled to the part of the fee that corresponds to the completed work. This applies in particular if, despite termination, the fulfilled services can be used by the client. The MBFG can make the completion of its service dependent on the full satisfaction of its fee claims. The complaint about the work of the MBFG does not justify - with the exception of obvious defects - the retention of the remuneration to which it is entitled.
3.5. The MBFG prices are exclusive of VAT. This is shown separately on the invoice.
3.6. Unless otherwise stated in the respective contract, payment is due immediately without deduction. The client is not entitled to cash discount deductions. The customer is in arrears with the payment without the need for a reminder if the payment is not received by the MBFG within 14 days after receipt of the invoice by the customer. The MBFG reserves the right to request advance payment.
3.7. If the customer is in default of payment, the MBFG will charge default interest of 10% p.a. above the applicable basic interest rate, insofar as it concerns payment claims. Otherwise, the MBFG pays default interest of 6% p. a. above the applicable base rate. In addition, the client will be charged a reminder fee of up to € 15.00 for each payment reminder, unless it is a delayed first reminder. In the event of late payment by the customer, the MBFG has a right of retention in relation to its contractual obligations. In particular, the MBFG can refuse the customer to activate the software. Furthermore, the MBFG is entitled to withdraw from the contract after a reasonable grace period and to claim damages.
3.8. Changes in customs duties and import and export fees that are not foreseeable by the customer at the time of the order entitle the MBFG to adjust the prices accordingly.
3.9. The customer is only entitled to set-off and retention rights if his counterclaims have been legally established, are undisputed or have been recognized by the MBFG. An assignment of claims by the customer against MBFG, including any warranty claims, is excluded.
4. Delivery and working time, delay in delivery
4.1. Time limits specified by MBFG for the provision of the delivery or service are only binding if they have been designated as binding in writing or in text form.
4.2. If the customer's order changes have an impact on deadlines designated as binding, these time limits are no longer binding for the provision of the delivery or service by MBFG, unless the date is once again designated as binding by MBFG in writing or in text form.
4.3. Delivery times and Target dates for consulting services are met if the MBFG has sent the subject of the contract by the expiry or has announced the readiness to ship products or project documents.
4.4. The customer must set the MBFG a reasonable deadline for performance or supplementary performance if the delivery date is exceeded. Only after this grace period has been exceeded is he entitled to withdraw from the contract.
4.5. The MBFG also postpones the withdrawal, delivery or service for the duration of the absence. Force majeure justifies all rights which the MBFG does not give to political guardianship and which the MBFG provide or render unreasonably difficult to perform, such as e.g. lawful rights or lawful lockout, import and export bans, lack of energy and raw materials, official rights or a not lawful self-supply not to be changed by the MBFG.
5. Inspection and notification requirements
5.1. With regard to all deliveries and services of the MBFG, the customer is obliged to examine and give notice of defects in accordance with international law.
5.2. Consulting services between the parties are deemed to have been performed in accordance with the contract once they have been carried out, unless the client immediately claims reservations.
6. Retention of title
6.1. The delivered item remains the property of MBFG until full payment of the purchase price. MBFG also retains ownership of the contractual item until all claims arising from the contractual relationship with the customer have been paid.
6.2. Pledges, transfers by way of security and other dispositions by the customer are not permitted as long as the retention of title exists. In the event of attachments or other interventions by third parties, the customer must immediately notify MBFG in writing so that the MBFG can file a lawsuit in accordance with Section 771 of the ZPO (third-party lawsuit). If the third party is unable to reimburse MBFG for judicial and extrajudicial costs of a lawsuit in accordance with § 771 ZPO, the customer is liable for the loss incurred by MBFG.
6.3. MBFG undertakes to release the collateral to which it is entitled at the customer's request insofar as the realizable value of the collateral exceeds the claims to be secured by more than 10%; the same applies if the estimated value of the goods transferred as security is 150% of the claims to be secured. The MBFG is responsible for selecting the securities to be released.
7. Liability, compensation
7.1. The MBFG and its employees act in accordance with the generally recognized principles of professional practice when carrying out the services ordered. MBFG is only liable for damage in the case that intent or gross negligence can be proven, within the framework of the legal regulations. Claims for damages against the MBFG for initial inability, delay, impossibility, breach of duty as well as claims for reimbursement of futile expenses and from unlawful acts are excluded.
7.2. The limitation of liability within the meaning of section 7.1 does not apply to the breach of essential contractual obligations as well as for personal injury and for damage that is based on the lack of a guaranteed property or for which liability is provided under the Product Liability Act.
7.3. In the event of a claim for damages for the slightly negligent violation of essential contractual obligations and in cases of grossly negligent violation of additional contractual obligations, liability is limited to the contractually typical, foreseeable damage. This does not apply in cases of personal injury, damage that is based on the lack of a guaranteed property or for which liability is provided under the Product Liability Act.
7.4. The liability of the MBFG for data loss is limited in any case to the typical recovery effort that would have occurred with regular and risk-appropriate backup copies.
7.5. Insofar as the customer cannot provide evidence that this damage was caused by intent or gross negligence on the part of MBFG, the liability of MBFG for unforeseeable damage and consequential damage is excluded.
7.6. Due to errors through no fault of one's own, as well as printing or transmission errors, which entitle the MBFG to contest, the customer cannot claim damages as a result of the contest.
7.7. Insofar as the liability is excluded or limited by the MBFG, this also applies to the personal liability of its employees, workers, representatives and vicarious agents.
7.8. The limitation period for claims for damages against the MBFG is one year, calculated from the start of the statutory limitation period, except for those arising from unlawful acts.
8. Rights of use
8.1. The customer acquires a simple, non-exclusive and non-transferable right to use the software programs provided in the contractually agreed scope with regard to the activated number of server and workstation licenses.
8.3. Copies of data media may only be made for archive purposes, as a replacement for lost or damaged software or for troubleshooting. They must get a copyright notice.
9. Warranty for defects
9.1. The MBFG points out that all programs are carefully prepared and checked before they are delivered to the customer. The customer acknowledges that it is not possible to completely exclude errors in applications based on the current state of technology.
9.2. The warranty rights of the customer presuppose that the customer has complied with his inspection and complaint obligations in accordance with the law properly and in writing.
9.3. Deliveries that turn out to be defective at the time of transfer of risk will be delivered or repaired by the MBFG at their choice (supplementary delivery). The customer will fully support the MBFG in the detection and rectification of defects. The MBFG can refuse the chosen type of supplementary fulfillment or the entire supplementary fulfillment if it is only possible with disproportionate costs. If MBFG delivers a defect-free item for the purpose of subsequent fulfillment, the buyer must return the previously delivered item.
9.4. If the MBFG is not in a position to remedy the defect or to deliver a replacement, in particular this is delayed beyond reasonable periods for reasons for which the MBFG is responsible, the customer is entitled to choose within the framework of the statutory provisions to withdraw (cancellation of the purchase contract) or to request a reduction (reduction in remuneration). The rectification of defects or replacement delivery is only considered to have failed if three attempts have been unsuccessful. In the event of recourse according to the law, the regulations made there apply.
9.5. The warranty period is 1 year, calculated from the start of the statutory limitation period.
9.6. No guarantee is accepted for damage resulting from changes to the delivered item without the consent of MBFG.
9.7. With regard to consulting services, the MBFG is entitled and obliged to subsequently correct errors and deficiencies in its consulting services that become known. It will inform the client of this immediately. The warranty obligation is 3 months. The customer is entitled to free of charge rectification of defects, provided that these are the responsibility of the MBFG. This entitlement expires six months after the MBFG has rendered the disputed service (reporting). In the event of failure to remedy any defects, the client is entitled to a reduction or - if the service rendered due to the failure of the remedy is of no interest to the client - the right to change. In the case of warranty, rectification always has priority over reduction or change. The reversal of the burden of proof, i.e. an obligation of the MBFG to prove the innocence of the defect, is excluded.
10. Property rights of third parties
10.1. The MBFG assumes that the contractual use of the object of purchase does not violate third party property rights. The customer will inform MBFG immediately if third parties claim infringements of property rights.
10.2. The MBFG is entitled to take over the legal defense of the customer at its own expense. In this case, the MBFG decides on the legal countermeasures as well as on settlement negotiations.
11. Installation, training, advice and other services
11.1. Other services such as the installation of the transferred or other software programs on a computer system, the adaptation of the transferred or used applications to the special needs of the customer, the adaptation of interfaces and other programming services, the training of users or maintenance of a software program and other consulting services are not included in the scope of delivery and are agreed by the contracting parties separately and in writing.
11.2. Unless a fixed price has been agreed, all services are remunerated according to the list price valid at the time the contract is concluded.
11.3. Information is only binding upon written confirmation from the MBFG.
11.4. Note: The customer is advised that suitable precautions and measures (such as daily data backup, data backup check, etc.) can prevent and / or reduce any impairments and / or damage that are caused by the fact that the contractual items delivered are complete or partially not working properly and / or that this has an impact on the customer's existing software and / or systems.
12. Termination of usage rights
In all cases of the termination of his usage authorization (e.g. by withdrawal, subsequent delivery), the buyer immediately releases all deliveries of the contractual items and deletes all copies, unless he is legally obliged to keep them longer. He assures the completion in writing to the MBFG.
13. Trial delivery
Contractual items supplied for test purposes are the property of MBFG. They may only be used by the customer on the basis of a separate agreement with MBFG. They are to be treated with care and to be returned at any time on request and brought to the MBFG headquarters or deleted in accordance with Section 12.
14. Mandatory information according to the Service Information Obligation Ordinance (DL-InfoV)
MBFG GmbH & Co. KG
D-73525 Schwaebisch Gmuend
Tel.: +49 7171 9299-25
Fax: +49 7171 9299-26
Company headquarters: Klarenbergstr. 250, 73525 Schwaebisch Gmuend
Managing director authorized to represent: Dipl.-Ing.(FH) Gert Irmler
Limited partnership: Location Schwaebisch Gmuend, District Court Ulm HRA 701151
Personally liable partner: MBFG Mittelstaendische Beteiligungs- und Fuehrungs-GmbH, Schwaebisch Gmuend, District Court Ulm HRB 701517
VAT Id. No.: DE214193093
Responsible for content according to § 6 MDStV: Dipl.-Ing.(FH) Gert Irmler
Mail address: email@example.com
15.1. In the event of a delay in payment and subsequent reminder, or if the client does not fulfill his obligation to provide information or to cooperate despite multiple requests, the MBFG is entitled to discontinue the execution of the order and to terminate the contractual relationship with immediate effect.
15.2. Der Auftraggeber ist berechtigt, den Vertrag zu kündigen, insofern die MBFG ihren Pflichten trotz mehrfacher Aufforderung nicht nachkommt. Die Kündigung erfolgt in schriftlicher Form.
16. Personal equality
Usually only one gender form is chosen in the texts to ensure better readability. Unaffected by this, the information on this website applies to all genders.
17. Location of fulfillment, jurisdiction, other
17.1. German law applies to the order, its execution and the resulting claims, unless otherwise agreed.
17.2. The location of fulfillment for the services to be provided by the contractor is the agreed one. If there is no agreement, the location of fulfillment for this is Schwaebisch Gmuend / Germany. The location of fulfillment for all other mutual obligations arising from the contractual relationship is Schwaebisch Gmuend / Germany.
17.3. The place of jurisdiction for all disputes arising from the contractual relationship is Schwaebisch Gmuend / Germany, insofar as this can be legally agreed between the parties.
17.4. Changes and additions to this contract must be in writing. Different individual agreements take precedence over these general terms and conditions. Should individual provisions of the general terms and conditions be ineffective or contain a loophole, the legal validity of the remaining provisions remains unaffected. Instead of the ineffective provision, an effective provision is deemed to have been agreed that comes closest to what the parties wanted economically.
Release: 1st July 2020