General Terms and Conditions

General Terms and Conditions (GTCs) for use in business transactions with companies under the terms of Section 14 of the German Civil Code (BGB)

The user of the GTCs is

Memorysolution GmbH
Hafenstr. 17

79206 Breisach, Germany 

Tel.: +49 7667 9469-0 
Fax: +49 7667 9469-69 

Headquarters: Breisach 
Commercial Register: HRB 700126 
Managing Director: Gerald Diercks 

The European Commission’s Online Dispute Resolution platform:

1. Scope of validity

1.1. These GTCs shall apply exclusively to companies under the terms of Section 14 of the German Civil Code. 

1.2. MSO’s General Terms and Conditions shall apply exclusively; the Buyer’s deviating or supplementary Terms and Conditions which are unfavourable to MSO shall not form part of the content of the contract, even if MSO does not separately object to the same.

1.3. The content of the contract is based on the written agreements. No other agreements have been made. Modifications or amendments to the contract are only valid if confirmed by MSO in writing.

1.4. Modifications to the Terms and Conditions with regard to continuous obligations shall be disclosed to the Buyer in writing, along with an indication of the amended provisions, and shall be deemed agreed if the Buyer continues with their continuous obligation and gives no objection within a reasonable period of time.

1.5. Under the terms of these GTCs, “goods” are all objects, including software, to be surrendered to the Buyer according to the contract, even though they may be considered immaterial, e.g. made available by means of electronic transmission. 

2. Offer and conclusion of the contract

2.1. Offers are non-binding and subject to change. Information relating to properties obtained in public statements such as catalogues, brochures, circulars, advertisements, illustrations, promotions and price lists is only considered a quality if it has also become part of the contract. Public statements made by a third-party manufacturer or its agents are only considered a quality of the goods if it is agreed upon in the contract or if MSO has expressly endorsed the same in writing in public statements. MSO sales employees are not authorised to make verbal side agreements or offer verbal assurances which extend beyond the scope of the written purchase contract.

2.2. The Buyer’s offers shall be deemed accepted if MSO has confirmed them in writing, e.g. by means of order confirmation or prepayment invoice, or once MSO has delivered the goods or performed the services.

2.3. Quality-related information does not constitute a guarantee (an assurance) under the terms of Section 276, Para. 1 of the German Civil Code or a guarantee under the terms of Section 443 of the German Civil Code if MSO has not explicitly undertaken in writing to provide such a guarantee. Should a third-party manufacturer of a product provide a guarantee, this shall be passed on to the Buyer to the same extent.

3. Terms of delivery, partial deliveries

1. Delivery dates or delivery periods, which can be agreed upon as being binding or non-binding, must be specified in writing. 

2. Regardless of the settlement of transport costs, the risk of loss or damage shall pass to the Buyer upon delivery to the person entrusted with the shipment, even if MSO makes the shipment itself. This does not apply to debt to be discharged at the creditor’s domicile. 

3. MSO’s obligation to deliver is subject to timely and correct deliveries being made to it, insofar as it can demonstrate that it placed its order in good time. MSO shall not be held liable for any delays in deliveries and service performance resulting from force majeure or events which significantly impair or render impossible MSO’s ability to deliver for more than just a temporary period of time – including industrial disputes, official orders, etc. – even if such events affect suppliers of MSO and even if binding delivery periods and dates have been agreed. Such circumstances shall entitle MSO to either postpone the delivery or service performance for the duration of the disruption plus a reasonable lead time, or to withdraw from the contract either in whole or in part due to the part not yet fulfilled. MSO shall inform the Buyer of such disruptions immediately. Should the disruption last longer than two months, the Buyer may withdraw from the contract in view of the part that has not yet been fulfilled. The Buyer shall not be entitled to claim compensation. If modifications which may influence the delivery period are made to the contract, the delivery period shall be extended accordingly, unless specific agreements have been made in this regard. MSO is entitled to withhold services for as long as the Buyer is in default with their contractual obligations arising from other contracts. 

4. The service period shall also be extended insofar as the Parties are negotiating on amending the service, or insofar as MSO submits a follow-up offer after assumptions in its offer that became an integral part of the contract are proven to be incorrect.

5. Compliance with MSO’s delivery obligation is subject to the timely and orderly fulfilment of the Buyer’s obligations. If the Buyer does not accept deliveries on time, MSO is entitled – with full reservation of all other rights – to set them a reasonable grace period, after the expiry of which it may otherwise dispose of the goods and grant the Buyer a reasonably extended grace period. In the context of a claim for damages, MSO may claim 10% of the agreed net price as lump-sum compensation unless smaller damages were demonstrably incurred. MSO reserves the right to assert a claim for actually greater damages.

6. Partial deliveries, partial services and corresponding invoices are permissible if they are acceptable to the Buyer.

4. Prices, payment, offsetting, rights of retention, non-assignment clause

1. Unless stated otherwise, all prices are ex-stock prices plus statutory VAT. Packaging, shipment and insurance are generally charged separately. Unless agreed otherwise, invoices are due for payment without any deductions within seven days of the invoice date. Should the Buyer default on an invoice, the payment dates for all other invoices shall be reduced to one week from the invoice date. In the event of a default in payment, interest shall be calculated at a rate of 8% above the respective base interest rate. Any further claims remain reserved. 

2. Offsetting by the Buyer is only permissible with undisputed or legally established claims. The Buyer is only entitled to exercise their rights of retention with undisputed or legally established claims arising from the same legal relationship.

3. The assignment of claims made against MSO is excluded. This shall not apply within the scope of Section 354a of the German Commercial Code (HGB). 

5. Transfer of risk and shipment

The risk passes to the Buyer as soon as the shipment has been handed over to the person effecting transport or has left MSO’s warehouse for the purpose of shipment. The shipment route and method shall be chosen by MSO, unless expressly agreed otherwise. The goods are insured at the Buyer’s request and expense. Should shipment be delayed at the Buyer’s request or on grounds attributable to them, the goods shall be stored at the Buyer’s expense and risk following notification of readiness for shipment. 

6. Reservation of ownership

1. MSO reserves ownership of the purchased product until all payments resulting from the contract are received. This reservation of ownership shall persist until all receivables arising from the business relationship, including future claims, are paid. 

2. The Buyer is obligated to handle the goods with due care and to sufficiently insure at their own expense the replacement value against damage caused by fire, water, theft and vandalism. The Buyer must carry out any required maintenance and inspection work in good time and at their own expense.

3. The Buyer shall immediately inform MSO in writing in the event of any pledges or other interventions by third parties so that it may file a suit according to Section 771 of the German Code of Civil Procedure (ZPO). If the third party is unable to reimburse MSO for the judicial and extrajudicial expenses of a suit according to Section 771 of the German Code of Civil Procedure, the Buyer shall be liable to reimburse the losses MSO incurs. 

4. Should the Buyer act in violation of the contract – and particularly default on payment – MSO is entitled to withdraw from the contract and take back the goods after issuing a warning and granting an additional grace period. It is not necessary to withdraw from the contract to assert reservation of ownership. In case of doubt, goods shall only be taken back as a precaution. 

5. The Buyer is entitled to process and sell the reserved goods in the ordinary course of business provided that they are not in arrears. Pledges or assignments as security are impermissible. The Buyer shall now fully assign any receivables arising from the resale or for any other legal reason relating to the reserved goods (insurance, tortuous acts, etc.), including all current account balance receivables, to MSO by way of security. MSO revocably authorises the Buyer to collect receivables in their own name on MSO’s behalf. This collection authorisation may be revoked if the Buyer does not fulfil their payment obligations. 

6. While processing or restructuring takes place for MSO as a manufacturer, they are not an obligation for MSO. Should MSO’s (co-)ownership be dissolved due to combination, it is hereby agreed that (co-)ownership of the unitary item shall be transferred to MSO proportionate to the value percentage (invoice value). The Buyer manages MSO’s (co-)ownership free of charge. The resulting co-ownership rights shall be deemed reserved goods under the terms of these Terms and Conditions. MSO may demand that the Buyer disclose assigned receivables and debtors, hand over all documents required for collection and inform the debtors of the assignment. 

7. MSO undertakes to release the securities at the Buyer’s request insofar as the value of the securities exceeds the receivables to be secured by more than 20%. 

7. Notification of defects and warranty

1. MSO guarantees that the products are free from production and material defects. The warranty period is two years, unless agreed otherwise. 

2. When purchasing used goods, the Buyer’s rights concerning material defects are excluded. This shall not apply to claims for damages and claims resulting from an assurance (a guarantee, Section 276, Para. 1 of the German Civil Code) or a guarantee (Section 443 of the German Civil Code) granted by us, or if MSO has fraudulently concealed the defect (Section 444 of the German Civil Code). 

3. The Buyer must immediately inspect the quantity, quality and assured properties of the goods as soon as they arrive (Section 377 of the German Commercial Code). Obvious defects must be reported to MSO immediately in writing. Defects that cannot be immediately detected even after careful examination must be reported in writing immediately after they are discovered. 

4. Liability for normal wear and tear is excluded. In the case of justified complaints, MSO shall choose to either repair or replace the goods. If the repair or replacement of the goods repeatedly fails, the Buyer may withdraw from the contract or demand a reduction in price. 

5. If operating or maintenance instructions are not observed, modifications are made to the product, parts are replaced or consumables which do not comply with the original specifications are used, then any warranty shall be rendered null and void if the Buyer fails to provide appropriately substantiated proof that one of the above circumstances did not cause the defect. 

6. Should the goods sold lack any assured property at the time of transfer of risk, the Buyer is entitled to withdraw from the contract. The Buyer is only entitled to claim compensation if the insurance served the purpose of protecting them from such damage.

8. General limitation of liability

1. MSO shall not be held liable for minor negligence on the part of its bodies, legal representatives, employees or other vicarious agents. 

This limitation of liability does not apply to:
• Damages arising from injury to life, limb or health due to an at least negligent breach of duty;
• Other damages due to an at least grossly negligent breach of duty, or due to an at least negligent breach of essential contractual obligations (obligations, the fulfilment of which mainly enables the proper performance of the contract and compliance with which the contracting party can regularly rely on);
• Damages which fall under the scope of an assurance granted by MSO (guarantee, Section 276, Para. 1 of the German Civil Code) or a guarantee (Section 443 of the German Civil Code), claims resulting from the German Product Liability Act.

2. The extent of MSO’s liability for minor negligence or grossly negligent conduct on the part of its vicarious agents who are not legal representatives or executive employees (simple vicarious agents) shall be limited to the damage that can be typically expected upon conclusion of the contract and to the claim for reimbursement of futile expenses to the amount of ordinary contractual performance. In the event of data loss, MSO shall only be held liable in the event of minor negligence for such expenses that would have been required to restore the data in the event of proper and regular data protection by the Buyer.

3. The present Section 8 also applies to tortious claims asserted by the Buyer.

4. Insofar as the liability according to the present Section 8 is excluded or limited, this shall also apply to the personal liability of MSO’s employees, representatives and vicarious agents.

9. Assignment of receivables, data

MSO is entitled to sell its receivables resulting from the sale of goods (e.g. by way of factoring), including ancillary and collateral rights. According to information on this matter, payments with discharging effects can now be made to the factor, whereby the time of payment shall be deemed receipt by the factor. MSO remains the recipient of warranty claims. In this case, Munich is the place of jurisdiction, insofar as the contracting party is a businessman or a legal person under public law. The Buyer’s data is collected electronically by MSO, used in the context of fulfilling the contract and passed on to the factor. 

10. Confidentiality, data protection provisions, email addresses

1. MSO and the Buyer are obligated to treat as confidential all confidential information, business secrets or trade secrets acquired in the context of the business relationship, and in particular not to pass such information on to third parties or to use it in a manner inconsistent with contractual purposes.

2. MSO shall ensure that all persons entrusted by MSO with the fulfilment of the contract adhere to the legal data protection provisions. MSO collects, saves, uses and processes personal data only insofar as is necessary to perform the contract.

3. Should MSO receive from the Buyer, who is an entrepreneur, an email address in connection with the sale of goods or a service, MSO is entitled to use the address for the purposes of directly advertising its own similar goods and services if the Buyer has not objected to such use and if it is clearly and explicitly indicated to the Buyer upon collection of the address and each time it is used that they can object to such use at any time without incurring any costs other than the transmission costs in accordance with the basic rates.

4. The Buyer is hereby notified that, if they provide any email addresses when placing an order, these shall also be used by MSO for the purposes of directly advertising its own similar goods and services. The Buyer may object to such use at any time.

11. Packaging

When purchasing or hiring hardware, the Buyer is responsible for packaging the hardware delivered and, at the end of its service life, for disposing of the hardware delivered, insofar as ownership of the same has been transferred to the Buyer.

12. Place of fulfilment, place of jurisdiction, governing law

Insofar as the contracting party is a businessman or a legal person under public law, the place of fulfilment for all obligations and the place of jurisdiction for all disputes arising from the contractual relationship is Breisach. MSO is, however, entitled to institute proceedings against the Buyer at any other legal place of jurisdiction. The contractual relationship is subject to the law of the Federal Republic of Germany.

13. Severability clause

The invalidity of provisions in these contractual conditions or of any provisions otherwise agreed upon between the Parties does not affect the validity of the remaining provisions set down in these General Terms and Conditions of Delivery and Service or in other agreements. With regard to any provisions otherwise agreed upon between the Parties, the Parties are obligated to replace the invalid provisions with valid provisions that reflect the meaning of the invalid provisions as closely as possible.