General terms and conditions for services
§ 1 General – Area of application
1. Our general terms and conditions (GT&Cs) are part of the contract and apply exclusively. We do not recognize any customer terms and conditions that contradict or deviate from our GT&Cs, provided we have not agreed to their validity in writing. Nor do we recognize deviating terms and conditions if we carry out the order without reservation in the knowledge of contradictory or deviating conditions of the customer. Our GT&Cs shall apply for trading business on both sides, including for all future business with the customer. The respective applicable version when the contract is concluded is definitive.
2. Agreements made with the customer in writing have precedence over these GT&Cs. Verbal agreements shall only be binding if they have been confirmed in writing.
§ 2 Offers – Beginning with order execution
1. Our offers are subject to change, unless otherwise expressly stated.
2. Orders which the customer has issued to us verbally shall also be binding. We demand that the customer confirm orders issued verbally immediately in writing. An order shall apply as issued if we begin with the order performance with the customer's knowledge before agreement on all points of an order, without the customer objecting to this.
§ 3 Subject matter of the contract
1. The subject matter of the contract is generated from the offer combined with the order confirmation.
2. Activity within the scope of the subject matter of the contract is always the agreed service and not the achievement of a specific financial success.
3. Activities that go beyond the scope of the subject matter of the contract must be performed with an order extension in acc. with § 2 S.2.
§ 3 Prices – Price adjustments
1. Our prices are net prices. Value-added tax is invoiced additionally at the legally prescribed amount. With any changes to the legally applicable VAT rate, we shall adjust our remuneration at the time of the respective legal change and at the respective amount, without any right to terminate for the customer.
2. Additional services shall be billed separately. We shall be entitled to demand an appropriate advance payment before service performance.
§ 4 Terms and conditions of payment
1. We shall present our services provided for signature in accordance with the project status report. With their signature the customer acknowledges that the services provided, both in content and amount, are contract compliant.
2. Any possible material expenses incurred shall be paid for separately. Waiting times of our employees that are attributed to the customer shall be paid for as working time. Travel costs and expenses incurred within the scope of our service provision, shall be passed on to the customer, provided this is not contractually agreed separately.
3. We shall be entitled to issue invoices monthly. The agreed payment shall be due within ten (10) calendar days on receipt of the invoice without any deductions. Our invoices shall apply as recognized if the customer does not object in writing within two (2) weeks.
5. The customer may only set off uncontested or legally enforceable claims against our claims. This shall not apply for claims of the customer, which have a close synallagmatic relationship with our claims. The customer may set off such claims in full. The customer shall only be entitled to repayment rights that are based on counter claims from the same legal proceeding.
6. After the due date MCG shall be entitled to charge interest at 9 percentage points above the base interest rate and a flat-rate of EUR 40. MCG's right to assert higher damages due to delayed payment shall remain unaffected.
§ 5 Execution of orders
1. Before issuing an order, the customer shall be obliged to name all laws, regulations and other provisions to us, on the basis of which they would like the service to be provided. The customer shall also provide us with all data, documents and other information on request and in writing, which is to be considered with the service provision, before issuing an order. The customer shall carry any added costs that are incurred by any violation of these information and cooperation obligations. We shall not be liable for damages that attributed to violation of cooperation obligations or to the provision of false or incomplete information.
Any initial results delivered must be checked immediately by the customer for accuracy and completeness of the information contained therein regarding their company.
2. Delivery and performance times and changes to them are essentially only binding if they have been mutually agreed.
3. Where we rely for our service provision on the services of one or more upstream suppliers, agreed performance and delivery dates shall apply subject to the on-schedule service provision of our upstream suppliers. This condition shall not apply for delays that we ourselves are responsible for.
4. If MCG delays the service provision because of documents presented late by the customer, the processing period shall automatically be delayed by the same amount of time. MCG shall invoice added costs incurred because of this delay separately at the usual market conditions.
§ 6 Service outsourcing
We shall be entitled incorporate third parties for the service provision and to award the order in full or in part, provided this does not infringe on customer interests that must be protected.
§ 7 Withdrawal, termination
1. The customer shall not have any legal right of withdrawal because of services not provided or not provided as contractually agreed, if we are not responsible for the infringement of obligations. The afore-mentioned shall, however, not apply if special agreements (e.g. fixed date transaction) result in a right to withdraw, regardless of negligence, for the customer.
2. Both parties may terminate the contractual relationship in writing with a period of six (6) weeks before the end of the respective month. The right to extraordinary termination shall not be affected by this.
3. Should the customer terminate the contract, our services provided shall be charged to that amount provided until the termination becomes effective. The customer shall also refund us those costs that we can prove we incurred because of this and for the direct purpose of performing the terminated scope of service while observing due business diligence and which were or are no longer reasonably avoidable.
§ 8 Liability
We shall be liable for whatever legal reason for intentional and grossly negligent conduct, with a culpable injury to life, limb or health.
Otherwise, MCG shall only be liable for culpable or grossly negligent conduct of MCG entities or vicarious agents. MCG's liability for intentional and grossly negligent conduct with personal injury and damage to property shall be limited within the scope of our liability insurance to EUR 5,000,000, and with financial losses to EUR 100,000. With a simple, however not slightly negligent violation of important contractual obligations, our liability shall be limited to refunding the compensation for damage that is typical and foreseeable on conclusion of the contract. Important contractual obligations are obligations that protect the customer's legal positions, which the contract therefore must ensure for the customer according to its content and purpose, as well as obligations, whose fulfilment is only enabled by the correct performance of the contract and on whose compliance the customer can rely on regularly. Our liability shall also be excluded for whatever legal reason.
The limitation of liability shall also apply in our staff and employees' favour, as well as their representatives and vicarious agents and subcontractors. A reversal of the burden of proof is not connected with the above mentioned regulations.
§ 9 Rights of third parties
In the event that we perform the order according to their specifications, the customer shall ensure that we do not violate the rights of any third parties. Should in this case a third party claim that we have violated their rights, the customer shall be obliged to release us from such claims. This obligation to release applies to all expenses (especially the costs of legal proceedings), which we may incur in connection with the claims of a third party.
§ 10 Deterioration of the customer's financial situation
1. Should facts become known to us after conclusion of the contract, which bring the customers ability to pay into question, we shall be entitled to demand full payment of the agreed amount or provision of a suitable surety before the further performance of the order.
2. Facts that question the customer's ability to pay are in particular long-term attachments or other enforcement actions, an application to open an insolvency procedure or complete or partial default on the payment by the customer of a bill or part of a bill.
3. Where the customer defaults in the payment of a bill or part of a bill, we shall also be entitled to suspend our further service until payment or provision of the surety. In this case, we shall also be entitled to terminate the contract with the customer without notice after a reasonable period has elapsed without success. Our continuing claims shall be unaffected by this.
§ 11 Force majeure
If we cannot provide a service due to force majeure, in particular due to raw material scarcity, power and workforce scarcity, labour disputes, serious transport disturbances, operational faults that we are not responsible for or cannot foresee, actions by official authorities that cannot be attributed to us, pandemics or other events that cannot be attributed to us, we shall not be obliged to provide the service for as long as the service obstruction lasts, and provided we have informed the customer immediately and in writing. Should the obstructions last more than four (4) months, we shall have the right to withdraw from the contract, if completion of the contract no longer has any interest for us due to the obstruction and we have not accepted the procurement or production risk. At the customer's request and after expiry of the corresponding period, we shall explain whether we will withdraw or fulfil our performance obligations within a reasonable period.
§ 12 Confidentiality
Only data, plans and other documents and information that are identified by the customer in writing as requiring confidentiality shall be subject to an agreed obligation to maintain secrecy. Verbally disclosed information must be identified as requiring confidentiality in writing within ten (10) days. The obligation to maintain secrecy shall not apply if the information is already generally known or the fault becomes known without our involvement, if we have generated the information requiring confidentiality ourselves and without using information of the customer or if the law or an official authority demands disclosure on the basis of an obligatory legal provision. Our obligation to maintain secrecy shall apply from the point of disclosure of the information for a period of five (5) years.
§ 13 Final provisions
1. Our company's headquarters shall be the place of performance.
2. Our business headquarters shall be the exclusive place of jurisdiction for all current and future claims concerning the business relationship with business persons or public sector-legal entities. The same place of jurisdiction shall apply if the customer has no general place of jurisdiction in the country, their place of residence or usual place of registration has moved out of the country or their place of residence or usual place of registration is not known at the time the objection is made. We shall, however, be entitled to also enter an objection against the customer at their place of business or any other permissible place of jurisdiction.
2. German Law shall apply exclusively for all legal issues. The United Nations Convention concerning contracts for the international sale of goods of 1980 and other conflict regulations shall not apply.
3. Should one or more of the provisions of these general terms and conditions or of the contract between the parties be or become ineffective, the validity of the rest of the contract shall remain unaffected herefrom. Another provision that comes as close as possible to the purpose and financial significance of the ineffective provision must be agreed between the parties to replace the ineffective provision.