Status: March 2023
1. Scope of Application
These General Purchasing Terms and Conditions (GPTC) apply to all current and future business relationships relating to the purchase of software licenses by us, MRM Distribution GmbH & Co. KG, from you as our customer (hereinafter “you” or “customer”).
Our offer is directed exclusively at commercial or self-employed customers, i.e. entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB).
If the entrepreneur uses conflicting or supplementary general terms and conditions, their validity is hereby rejected; they shall only become part of the contract if we have expressly agreed to them.
2. Contractual Partner
The purchase agreement is concluded with:
MRM Distribution GmbH & Co. KG
Carl-von-Linde-Strasse 38
85716 Unterschleißheim
Germany
Commercial Register: Local Court Munich, Registration Number: HRA 112253
represented by the personally liable partner
MRM Distribution Verwaltungs GmbH, represented by the Managing Director Melanie Achten
Carl-von-Linde-Strasse 38
85716 Unterschleißheim
Germany
Commercial Register: Local Court Munich, Registration Number: HRB 256880
3. Conclusion of Contract
If we purchase software from you, the contract shall be concluded on the basis of our written offer, which – unless otherwise stated – finally sets out all essential contractual terms. You may accept this offer in its unchanged form without formal requirements within the offer period specified. If no offer period is specified, a period of 7 days shall apply for acceptance.
Late acceptances, amendments, additions or deletions to our offer by you shall constitute a new offer which we may reject unless expressly accepted by us in writing. Otherwise, we may submit a new offer which you may in turn accept informally within the specified period.
4. Submission of Documents; Assurance
In the case of so-called used software, we only purchase software that is fully owned by you and for which the distribution rights of the manufacturer with regard to the software copy have been exhausted within the meaning of Section 69c No. 3 of the German Copyright Act (UrhG) (so-called exhaustion). This requires that the software was first placed on the market within the European Economic Area (EEA) with the consent of the manufacturer, that a fee was paid in exchange for the software copy (software license), that the right associated with the purchased software was granted permanently (without time limitation), that the first acquirer was also entitled to use updates or supplements to the products, and that the first acquirer and any intermediate acquirers have rendered their software copies unusable and ceased using them without exception.
As the seller, you guarantee that, due to the fulfilment of the cumulative requirements of exhaustion, the right to use the software in accordance with its intended purpose exists, so that proof of the right of use vis-à-vis the manufacturer can be provided. You shall provide us with all documents related to the contract (software license agreements, license terms, etc.) without the need for us to conduct any further verification.
Furthermore, you shall immediately create an administrator access for MRM Distribution to your Microsoft VLSC. The following documents and information must be provided: license agreements, MLS (Microsoft Licensing Statement), purchase proofs (invoices, CPS = Customer Price Sheet), extracts from the VLSC showing the licensee, license agreements and products, as well as product keys (MAK and KMS) for the products to be sold, including downgrade keys for the two previous versions with activation capacities corresponding to the volume sold, as well as ISO files.
In the event that the supplied KMS/MAK activations of the licenses acquired by MRM Distribution are exhausted, you as the seller are obliged at any time to immediately request an increase of the activations for the affected licenses from Microsoft or to obtain new MAK/KMS keys and send them to MRM as soon as you are contacted by MRM Distribution in this regard.
You must also provide a comprehensive written declaration in accordance with our specifications confirming that the above requirements are fulfilled, in particular confirming that the software copies have been rendered unusable, upon delivery of the goods. At our discretion, submission of this declaration may be required in advance for verification by a qualified auditor or similar expert.
The aforementioned documents, information and declarations must be received by us with proof no later than three working days after acceptance of our offer.
Our offer and the contract concluded on this basis shall be subject to a condition subsequent that all of the aforementioned documents and declarations are submitted in due time.
5. Contract Language and Storage of Contract Text
The language available for the conclusion of the contract is German.
These terms and conditions can also be viewed and downloaded at any time on our website.
6. Delivery Conditions
Delivery shall take place through submission of the documents in accordance with Section 4 of these terms within the period specified therein of three working days and, finally, by submission of a proper invoice in accordance with Section 7 together with any delivery note if applicable.
7. Prices and Payment
Unless otherwise stated, all prices are exclusive of the statutory value-added tax (VAT), currently 19%.
Unless otherwise stated in the offer, payment by us shall be made within 30 days, beginning from the respective following month after receipt of a proper invoice and after you have fulfilled your obligations under Section 4 within the specified period, irrespective of any deviating statements in your invoice.
8. Warranty
The statutory warranty rights shall apply.
If, after conclusion of the contract, objectively justified doubts arise regarding the legality or validity of the acquisition of the software licenses or their existence on our side, or if such doubts are raised by the respective manufacturer and are not immediately and objectively dispelled by you, or if your declarations were not truthful, we shall be entitled to withdraw from the contract without setting a deadline.
In this case, any claim by you for compensation for value is excluded. Unless a breach of duty by us within the meaning of Section 10 of these terms can be proven, any further claims for damages are also excluded.
9. Indemnification
The customer shall fully indemnify us against all claims by the licensor and our further customers (subsequent acquirers of the contractual software) relating to the legality of the acquisition process of the contractual software and the associated licenses.
This also includes claims arising from any continued use of the purchased item by the customer or other claims relating to usage rights of other software licenses remaining with the customer.
10. Liability
For claims arising from damages caused by us, our legal representatives or agents, we shall be liable without limitation in the event of injury to life, body or health, in the case of intentional or grossly negligent breach of duty, in the case of a guarantee, fraudulent intent or where liability is mandatory under statutory provisions (e.g. under the Product Liability Act).
In the event of a breach of essential contractual obligations (cardinal obligations), the fulfilment of which is necessary for the proper execution of the contract and on whose compliance the contractual partner may regularly rely, caused by slight negligence by us, our legal representatives or agents, liability shall be limited to the foreseeable damage typical for the contract at the time the contract was concluded.
Otherwise, claims for damages and reimbursement of expenses are excluded.
11. Right of Retention
You may exercise a right of retention only insofar as your counterclaim arises from the same contractual relationship.
12. Final Provisions
The law of the Federal Republic of Germany shall apply, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
Place of performance and exclusive place of jurisdiction for all disputes arising from contractual relationships between us and you shall be our registered office.
Amendments and additions to these General Purchasing Terms and Conditions must be made in writing to be effective. With the exception of managing directors or authorized signatories, employees of the seller are not authorized to make oral agreements deviating from these terms or from written agreements.