General Terms & Conditions B2B
1. Scope of these General Terms & Conditions
1.1 The scope of these General Terms and Conditions (hereinafter referred to as “GTCs”) shall be all services mse elektronik gmbh (hereinafter referred to as “mse”) provides regarding the delivery of goods. Any delivery of goods shall be performed based exclusively on these GTCs. The Client expressly notes that MSE objects to any differing provisions in an order or in other business documents of the Client at this time. MSE does not acknowledge differing conditions of the Client and these shall be valid only if MSE confirms this in writing; it shall not be necessary for MSE to expressly object to each individual case. These GTCs, which are amended from time to time, shall apply to any further business transactions.
1.2 These GTCs only apply to business transactions between MSE and other entrepreneurs. Everyone for whom the business transaction is part of the operation of their company shall be considered an entrepreneur. Such company shall be any permanent organisation with independent, economic activity, even if it is non-profit. An aforementioned entrepreneur shall be referred to as “Client” in these GTCs.
2. Order, purchase order, delivery
2.1 Any MSE quotes and any details contained therein, including but not limited to prices, measurements, and weights, shall be subject to change and non-binding; quotes shall be considered invitations for the Client to issue a purchase order.
2.2 A Client’s purchase order shall be an offer to MSE to conclude a purchase contract. The Client shall be bound by any such purchase order. The order, and thus contract execution, shall be realised only after MSE has sent the Client a confirmation of order via email or message on the Client’s account, and/or sends the ordered product to the Client.
2.3 MSE expressly indicates that it reserves the right to accept and/or realise an order, particularly, subject to availability. Moreover, MSE reserves the right to refuse or not realise orders of the Client, particularly, in the event of unpaid invoices from prior orders. If MSE does not accept an order, the Client shall be informed within 5 working days (i.e., not Saturday and Sunday) from the day following transmission of the Client’s order; any advance payments of the Client shall be returned to them.
2.4 MSE reserves the right to make technical and design amendments to its products, in derogation from information presented on the website, in brochures, catalogues and written documentation as well as to amend model, construction or material on grounds of technological progress and further development within reason; the Client shall not be entitled to any rights or claims whatsoever against MSE resulting from this.
2.5 Any particular specifications and/or requirements of the Client regarding the subject of the contract and/or the services to be rendered by MSE and/or additional services and deliveries by MSE, must be expressly confirmed by MSE in writing. Requirements for retrospective alteration can be considered in exceptional cases and for additional costs; however, the Client shall not be entitled to them.
3.1 All prices mentioned by MSE shall be subject to change and shall be in euro (EUR), excluding VAT, unless otherwise expressly stated. Prices, including any discounts in price lists sent to the Client via newsletter shall be valid from the day of their shipping, subject to any changes in accordance with item 3.2. There will be no guarantee for the correctness of quotes insofar as nothing else is agreed in writing.
3.2 MSE shall be entitled to increase prices for the Client up to the day of contract execution (see item 2.2) owing to any changes in salaries because of provisions in collective agreements or statutory provisions or internal agreements, as well as changes in other cost units relevant for calculation, or for rendering of services necessary costs such as material, energy, transport, outsourcing, funding, etc. The Client shall not be entitled to the right of withdrawal or enforcement of the doctrine of frustration due to this reason. All prices shall be considered excluding extra costs unless stated otherwise in writing.
3.3 Costs for packaging, shipping, customs and further services shall be invoiced separately. MSE shall be entitled to charge a shipping and freight costs allowance in a specific case. Transport shall be realised at the Client’s risk and expense. MSE shall not be obliged to conclude transport insurance for the goods.
4.1 Any delivery deadlines agreed are calculated starting with the day MSE sent the order confirmation. However, the deadline shall not start until MSE has confirmed receipt of all technical or other information, documents, payments (see in particular item 5.1) or other services by the Client necessary for fulfilling the contract. Any delay in agreed payments will delay the delivery deadline accordingly. The delivery deadline shall be considered complied with if the product left MSE’s plant/storage (or for third-party transactions, the supplier’s plant/storage) on time, or if the Client collects it if the delivery is ready for collection and the Client has been informed about this on time.
4.2 MSE shall be entitled to choose the mode of dispatch and the dispatch route under exclusion of liability. In particular, there is no obligation to choose the cheapest mode of dispatch.
4.3 Packaging shall be carried out in customary manner; this shall also apply to partial or pre-deliveries. The Client shall bear costs for additional packaging and/or special packaging.
4.4 Additional fees for express or air freight delivery shall be invoiced separately. Transport insurance shall be concluded only on behalf of and at the expense of the Client.
4.5 MSE shall be entitled to either prolong the deadline accordingly or withdraw from the contract regarding the part not yet fulfilled for any interruptions of operations or cases of force majeure as well as other events beyond MSE’s area of influence; this particularly pertains to delays in delivery (above all to transport and/or customs-related delays) and similar on the part of upstream suppliers; in such cases, the Client will not be entitled to claims for damages (except in the event of wilful or gross negligent behaviour). In addition, the Client shall not be entitled to claim warranty and/or avoidance on account of error for such reasons. This shall also apply if the events occur at a time when MSE is in delay.
4.6 Transfer of risk and expense to the Client shall apply after MSE informs the Client that the delivery is ready for shipping; however, at the latest when the delivery leaves MSE’s plant/storage, or for direct delivery from a supplier’s storage when it leaves; this will be independent of any price arrangement that may have been agreed for the delivery; this shall apply even in the event that MSE has assumed additional services. If goods cannot be shipped due to no fault of MSE, MSE shall be entitled to store the goods at its own discretion and at the risk and expense of the Client, while the delivery shall be considered as fulfilled; in such cases, MSE shall be entitled to store the goods itself at customary prices or to store the goods ready to be shipped in the name and account of the Client with a third party. Irrespective of any agreement on the delivery address and on assuming any transport costs, the place of fulfilment shall be MSE’s business premises at Peter-Rosegger-Straße 54, 8053 Graz, Austria.
4.7 Provided that the Client has not accepted the goods (default/refusal of acceptance) and a 14-day grace period has also been unsuccessful, MSE shall be entitled to store the goods itself, charging a storage fee at the amount of 0.1% of the gross invoice amount per each calendar day or part thereof, or to store them at the risk and expense of the Client with a professional third party. At the same time, MSE shall be entitled to either insist on contract fulfilment, or to withdraw from the contract and otherwise to exploit the goods after a 14-day grace period. In the latter event, the Client must pay a contractual penalty of 20% of the gross invoice amount plus the actual shipping costs incurred.
5. Payment conditions, delay, offsetting ban, deliveries abroad
5.1 MSE shall be free to send its invoices electronically. The Client expressly agrees to this kind of transmission. Unless otherwise agreed, delivery of goods shall be realised after payment has been received (pre-payment). Financial retention shall only be acknowledged if there is a written agreement to this end or a statutory obligation for this, otherwise it shall be considered an outstanding payment. MSE reserves the right to assign received payments to any outstanding payments of this same Client at its own discretion.
5.2 In the event of an outstanding payment by the Client, MSE shall be exempted from all further service and delivery obligations and entitled to withhold outstanding deliveries or services as well as to demand securities. The Client also undertakes to pay default interest at the amount of 1% per month, whether it is responsible for this or not; in this case, MSE shall be entitled to claim additional bank interest at a customary rate. In addition, the Client must reimburse MSE for any default charges and collection expenses; in particular, it undertakes to reimburse, at a maximum, the expenses of the debt collection agency, resulting from the decree by the Austrian Federal Ministry for Digital and Economic Affairs regarding the maximum rates for debt collection agencies. If MSE renders collection itself, the Client undertakes to pay 10 euro per reminder.
5.3 In the event of a significant deterioration in the Client’s financial circumstances after execution of the contract, or if circumstances become known that might reduce the Client’s credit standing from MSE’s point of view, any outstanding payments shall be immediately due for payment. In such case, further deliveries shall be realised only with advanced payment provided that advanced payment according to item 5.1 has been waived.
5.4 The Client shall be entitled offset only if its counterclaims have been legally determined or have been acknowledged by MSE. Beyond that, the Client shall not be entitled to withhold payments.
6. Reservation of title
6.1 MSE reserves title to all delivered goods until full payment of the purchase price including interest and additional fees (on whichever legal grounds) is received. A purchase order with partial deliveries shall be considered one purchase order, wherein the reservation of title to all delivered goods shall continue to apply until full payment for all outstanding amounts of this business transaction is received. Enforcement of the reservation of title, e.g., by handover, shall not be considered withdrawal from contract provided that MSE does not declare withdrawal from contract (to which MSE shall be unilaterally entitled), and does not revoke the Client’s obligations, particularly that of payment of the remuneration.
6.2 The Client shall be entitled to pass on its remainder of the purchased goods within the framework of MSE’s reservation of title; however, it is not entitled to pledge the purchased goods or transfer them by way of security. MSE will be entitled to revoke this right of the Client at any time.
6.3 The Client must immediately inform MSE of any pledge or other impairment of the goods by third parties. The Client undertakes to bear any costs and measures to rectify the impairment, in particular, any costs of intervention processes and similar.
6.4 Reservation of title shall also extend to any products resulting from processing. In the event of processing, combination or mixing the goods with reserved title with other material, MSE shall become co-owner of the products created as a result in proportion to the value added.
6.5 The Client shall already cede all claims from the sale of goods for which MSE still reserves the title for security and settlement to MSE, if applicable to the amount of the co-ownership. MSE shall accept this surrender. The Client undertakes to inform MSE immediately about the name and address of the purchaser, the inventory and the amount of the payment claims arising from the sale; the Client must also inform the respective purchaser about the surrender in a verifiable manner. Furthermore, the Client undertakes to indicate surrender of such payment claim to MSE in an adequate manner in its accounting. MSE shall be entitled to notify the Client’s buyer of the surrender at all times. The Client shall bear any assignment fees.
6.6 The Client shall at this time convey to MSE all received amounts arising from cash sales of goods to which MSE reserves the title, up to the outstanding amount for delivery of these goods; MSE instructs the Client at this time to store this amount separately and hold it for MSE.
6.7 If the Client does not comply with its obligations or discontinues payment, the entire outstanding amount shall immediately become due for payment, even if there are bills of exchange with later maturity. In such a case, MSE shall be entitled to demand handing over of the purchased goods excluding any right of retention. Upon acceptance of returned goods, it is at MSE’s discretion to either sell the goods and credit the Client for the generated revenue minus 20% re-sale fees to its outstanding payments or accept return at the invoice amount minus any depreciation, as well as charging the Client customary rent for the time it had the delivered products.
7. Warranty, damages, aliud delivery, product liability
7.1 The Client shall notify MSE immediately about defects upon receipt of the delivery, however, at the latest within 8 days from the delivery, and before any kind of processing because this would exclude any claims for warranty and/or damages and/or avoidance for mistake; the notice of defects must be made in writing and describe the type of defect in detail; the Client shall not be entitled to retain payment of the invoice (in full or in part) due to this.
7.2 MSE reserves the right to make technical and design amendments to its products, in derogation from information presented on the website, in brochures, catalogues and written documentation as well as to amend model, construction or material on grounds of technological progress and further development within reason; the Client shall not be entitled to any rights or claims whatsoever against MSE resulting from this.
7.3 The Client must notify MSE of any further discrepancy of the goods delivered from those ordered, such as wrong measurements or wrong goods (aliud delivery), within 8 days from delivery before any kind of processing, even if the goods are not delivered directly to the Client. Otherwise, the goods shall be considered accepted and cannot be returned or exchanged.
7.4 Return of defective goods shall be possible only if the defect was discussed with MSE and shall be exclusively sent to MSE. The Client shall bear the costs for return shipping of defective goods. MSE will not accept shipments with freight collect. The goods must be returned in their original packaging, including all accessories and packaging parts.
7.5 MSE’s consultation, whether orally or in writing, shall be non-binding and will not relieve the Client from its own check as to whether products are actually adequate for the respective purpose.
7.6 The Client must always prove defectiveness of the goods at the time of delivery; legal presumption in accordance with Section 924 of the Austrian Civil Code shall be expressly excluded.
7.7 The warranty for goods which MSE purchases from sub-suppliers shall only be to such an extent that MSE can claim from the sub-supplier.
7.8 MSE shall only warrant that the delivered products have the characteristics customary for such products. MSE shall only warrant for further characteristics contained in, in particular, public statements, such as in advertisements and information added to the products, if MSE confirmed such characteristics/specifications in writing during the order process.
7.9 Products for which natural materials are used, such as wood and similar, may exhibit colour deviations and irregularities in the finish despite thorough selection of material and state-of-the-art production methods; such characteristics of natural materials, which cannot be controlled, shall not be considered a defect. Any warranty claims will be excluded in this regard.
7.10 Products for the manufacture of which synthetic materials are used, may exhibit minor irregularities in the finish and inclusions that cannot be avoided despite using state-of-the-art production methods; such irregularities and inclusions shall not be considered a defect. Any warranty claims will be excluded in this regard.
7.11 It shall be at MSE’s discretion to fulfil claims for warranty by means of exchange, improvement, price reduction or cancellation of contract.
7.12 Place of fulfilment for any services arising from a warranty claim shall be MSE’s business address at Peter-Rosegger-Straße 54, 8053 Graz, Austria, unless otherwise expressly agreed upon.
7.13 If the Client or third parties make any amendments to or repairs of the delivered goods without MSE’s written consent, the Client shall forfeit its claim to warranty. In the event of a complaint, the Client initially undertakes to accept the goods, properly unload and store them.
7.14 MSE shall be liable for any damage incurred by the Client within the business transaction only if it constitutes wilful intent or gross negligence on the part of MSE or its vicarious agents, except in cases of physical injuries where MSE shall already be liable for slight negligence. Compensation for consequential damage, mere financial damage, lost profit and damage from third party claims will be completely excluded.
7.15 It shall not be admissible to cede claims for warranty or damages and similar unless relating to mere money claims in b2b business transactions.
7.16 MSE shall not be liable for exact conformity with the first delivery in the event of additional deliveries.
7.17 The Client must adhere to any instructions in brochures, manuals or other product information as well as care and assembly instructions in order to avoid damage. If the Client does not adhere to them, any claims for warranty or damages shall be forfeited. MSE expressly warns against the products being used for any other purposes than those defined.
7.18 In the event that the Client re-sells the delivered goods, MSE shall no longer be liable for any warranty claims; right to recourse in accordance with Section 933 b of the Austrian Civil Code shall be excluded.
7.19 In the event that the Client is held liable due to the Austrian Product Liability Act or a similar foreign law, the Client shall expressly waive any right to recourse against MSE, in particular in accordance with Section 12 of the Austrian Product Liability Act or similar foreign provisions.
7.20 If the Client is selling goods delivered by MSE outside the European Economic Area, it undertakes to exclude any liability to pay damages in accordance with the Austrian Product Liability Act for its buyer, provided that this is permitted in accordance with the law applying to their business relationship. In such a case or if the Client omitted to do so, the Client shall indemnify and hold MSE harmless against any third-party claims arising from product liability. The Client undertakes to conclude adequate product liability insurance and to provide evidence of such insurance upon request.
8. Amendment of contract, cancellation of contract
8.1 The contract shall be amended appropriately if unforeseeable events arise which significantly modify the economic importance or the service content or have a significant impact on MSE’s operation and if it becomes clear thereafter that execution of contract is impossible. Insofar as it is economically unfeasible, MSE shall be entitled to cancel the contract in part or in full.
8.2 If MSE wants to use its right to cancellation, MSE shall immediately inform the Client of this, even in the event that they had previously agreed on a longer delivery deadline.
8.3 In the event of default of acceptance of the Client or other important grounds, such as default payment by the Client, MSE shall be entitled to immediate cancellation of the contract subject to a 14-day grace period notwithstanding further claims whatsoever. Cancellation shall become legally effective by means of a unilateral statement by MSE.
9. Third-party proprietary rights, copyrights
Plans, sketches, or other technical documents as well as samples, catalogues, brochures, images and the like shall always be intellectual property of mse; the Client shall not obtain and/or acquire any rights whatsoever, such as usage rights and/or exploitation rights. The Client shall immediately return such documents to MSE upon request.
10.1 MSE undertakes to comply with the provisions of the Austrian Data Protection Act (DSG), the General Data Protection Regulation (GDPR) as well as any further statutory duties of confidentiality.
11. Disposal of (old) electronic appliances
11.1 In the event that the goods are electronic appliances for industrial purposes in accordance with Section 10 of the Austrian Regulation for Old Electronic Appliances (EAG-VO), the Client shall be obliged to fund collection and treatment of (old) electronic appliances in terms of the Old Electronic Appliances Regulation.
11.2 The Client shall provide MSE with all information necessary for MSE to comply with all obligations from the EAG-VO, in particular those in accordance with Section 11 EAG-VO.
11.3 The Client shall be liable for any damage or financial disadvantages that might incur to MSE due to missing or inadequate compliance with the funding obligation in accordance with Section 10. The burden of proof shall lie on the Client.
12. Consent pursuant to Section 107 of the TKG20
The Client shall agree to receive messages from MSE, or companies that were assigned with this task by MSE, pursuant to Section 107 of the Austrian Telecommunications Act (TKG) for advertising purposes. The Client shall be entitled to revoke such consent at all times.
13. Final provisions
13.1 The Client undertakes to notify MSE immediately and verifiably of any change in its residence and/or business address without request, as long as the business transaction has not yet been completed. In the event that the Client did not notify MSE about such changes, statements to the Client shall also be considered as received when they were sent to the address last known to MSE. The burden of proof that it notified the change shall lie with the Client.
13.2 Contract language shall be German.
13.3 Place of fulfilment for any contract obligations of both parties shall be MSE’s place of business at Peter-Rosegger-Straße 54, 8053 Graz, Austria; this shall apply irrespective of any agreement regarding delivery address and payment of any shipping costs or place of payment.
13.4 Austrian substantive law, with the exception of its reference provisions in the event that those refer to foreign law, shall apply to all business transactions concluded under these GTCs, in particular, the contractual (delivery) agreement. In the event that Austrian law allows for particular international uniform rules also effective in Austria for international business transactions, such as the UN CISG, these shall expressly be excluded and not applied. This shall also apply to any questions on concluding the contract and/or interpretation of these GTCs and the contract.
13.5 Place of jurisdiction for any legal disputes arising from this contractual relationship or relating to it shall be exclusively the objectively competent court for 4873 Frankenburg, Austria. However, it shall be at MSE’s discretion to file suit at any other court that may be competent according to national or international law.
13.6 If one of the provisions of these GTCs is not legally effective or becomes void, the validity of the other provisions shall remain unaffected by this. Both parties undertake to replace the legally ineffective provision immediately with one that is as close as possible to the economic purpose of the ineffective one. The same shall apply for loopholes.
13.7 Headings used in these GTCs shall only provide a better overview and may not be used for interpretation purposes.