1. GENERAL, SCOPE OF VALIDITY
1.1 Our offers, deliveries and other services – also in the future – are made solely on the basis of these General Terms and Conditions of Delivery –Assembly – Payment. We do not recognize any contrary conditions of the customer or any deviating conditions that are not included in our General Terms and Conditions of Delivery and Payment.
1.2 Our General Terms and Conditions of Delivery and Payment apply only to persons who, on the conclusion of the contract, carry out their commercial or independent professional activities (“entrepreneurs”) and to legal entities under public law or special assets under public law. They do not apply to private individuals who conclude the contract for a purpose that cannot be attributed to either their commercial or their self-employed professional activity (“consumers”).
1.3 Excepting proof of the contrary, our written confirmation is decisive for the content of the contract.
1.4 The written contract contains the complete details agreed upon by both parts. Excepting proof of the contrary, our written confirmation is necessary for the content of oral side agreements and/or amendments to the contract.
1.5 References to the validity of statutory regulations shall only have clarifying significance.
2. PLACE OF FULFILLMENT, DELIVERY, TRANSFER OF RISK
2.1 Unless otherwise agreed, the place of fulfillment is Stockacher Straße 134, 78532.
2.2 Unless otherwise indicated in our order confirmation, “ex works” (EXW Incoterms 2010) is agreed with regard to the transfer of risk with accidental deterioration or destruction of the good (risk of performance).
2.3 Partial deliveries are permissible in an acceptable scope. Number 2.2 also applies if partial deliveries are made.
2.4 The in number 2.2 mentioned risk is transferred to the customer with the notification of the readiness for shipment, if the shipment is delayed due to circumstances that the customer is responsible for.
2.5 Within a reasonable period prior to delivery of the goods, the Buyer shall indicate to NEXOR the name(s) of one or more persons who is/are authorized to take receipt of the delivery and sign the delivery note. If none of the authorized
persons named by the Buyer is present, or is ready to take receipt of the goods, at the time and place of delivery as specified above, the Buyer shall enter into default of acceptance of the goods.
2.6 If none of the authorized persons named by the Buyer is present, or is ready to take receipt of the goods, at the agreed place of delivery on the agreed date for delivery, the Buyer shall enter into default on taking receipt, the consequence being that the risk shall pass to the Buyer. Furthermore, the Buyer shall bear the extra costs arising as a result of the need to make delivery again.
3. DELIVERY TIME
3.1 Delivery times are only binding when they are confirmed by us in writing. Agreed delivery times start with the conclusion of the contract, but not before receipt of the documents, permits, approvals to be obtained by the customer and the complete clarification of the technical questions to be answered by the customer.
3.2 The delivery time is complied with if the circumstances causing the transfer of risk pursuant to number 2.2, 2.3 and 2.4 have occurred within the deadline.
3.3 The delivery period is extended – also within a delay – appropriately in the event of force majeure and with all unforeseeable obstacles that occur after conclusion of the contract that we are not responsible for to the extent that such obstacles have a demonstrable impact on the provision of the performance owed. This also applies when these circumstances occur at our pre-suppliers. We will notify the customer of the start and end of such obstacles as early as possible. If the obstacle lasts longer than three months or it is clear that it will last longer than three months, both we and the customer may withdraw from the contract.
3.4 If it becomes clear after the conclusion of the contract that our claim to payment is jeopardized by a lack of ability to perform on the part of the customer, we are entitled to refuse our performance and to carry out activities in preparation of that performance. The right to refuse performance no longer applies if the payment has been made or security has been provided for it. We can set the
customer an appropriate deadline for payment/the provision of a security. After a deadline has expired to no avail, we are entitled to withdraw from the contract.
3.5 If we fall into arrears with the delivery or performance as the result of simple negligence, our liability for compensation due to the delay in delivery or performance, which can be demanded alongside the delivery/performance, is restricted to 0.5% of the delivery/performance value for each completed week of
delay, but up to a maximum of 5% of the delivery/performance value. If the customer files for compensation in the aforementioned cases instead of delivery or performance, this claim to compensation is limited to 15% of the delivery/performance value. Proof remains reserved to us, that no damage or considerably less damage has been caused. The restrictions on liability pursuant to the aforementioned sentences 1 and 2 do not apply in the event of delay as a result of gross culpability, nor with an injury to life, body and health, nor with business
which must be settled on a fixed date.
3.6 If the customer is in arrears with the acceptance of the items to be delivered or the payment of the purchase price, we can withdraw from the contract after the expiry to no avail of an appropriate subsequent period set by us and required by law and/or demand compensation instead of performance. When claiming compensation, we may demand compensation, without evidence, – amounting to 20% of the purchase price to settle the lost earnings if the item to be delivered is a serial or a standard product, or – amounting to 100% of the purchase price if the item to be delivered is a customized product made according to the specific requirements of the customer and the expenses necessary to create the readiness for delivery have been incurred on our part.
The contracting parties are at liberty to provide evidence that the actual damage is higher or substantially lower. The rules under the law for the determination of the
compensation are unaffected by this if the contract has already been fulfilled entirely on our part. We are also entitled to charge the additional expenses, in particular storage costs, incurred if the customer refuses acceptance.
In the event of storage at our own premises, the usual local storage costs will be charged.
4. PRICES, PRICE ADJUSTMENT
4.1 All prices are expressed in EURO and NEXOR prices are net and valid for an order of all items.
4.2 For the content and scope of deliveries and services, the order confirmation of NEXOR shall be binding and shall supersede any other contract documents. Remote data transmission, electronically (E-Mail, etc.) transmitted offers,
order confirmations and other contract documents are legally binding without a signature.
4.3 Unless otherwise indicated in our order confirmation, our prices are “ex works” (EXW Incoterms 2010).
Packaging, carriage, installation and insurance are charged separately.
4.4 Our prices do not include the statutory VAT if applicable.
The VAT applicable at the date of the invoice will be charged separately for deliveries within Germany.
4.5 Unless otherwise indicated in our order confirmation, invoices are due and payable within 30 days from the date of the invoice. When the date of due payment has been exceeded, we charge – without further overdue notice – default interest in the amount of 9 percentage points above base interest rate per year. Our claim for commercial maturity interest (after sec. 353 German Commercial Code) against merchants remains unaffected.
4.6 We reserve all rights to claim further damages. The right of the customer to remains unaffected to prove that no damage or considerably less damage has been caused due to the delay of payment.
4.7 An offsetting, or a retention with the effect of an offsetting, of payments is only permitted as a result of legal claims by the customer which have been recognized by us, are not disputed and are ready for decision or are final and conclusive.
4.8 For orders with a total value less than 1.000-EUR we may charge an administration/handling fee of 50-EURO.
4.9 Payment shall be effected by interbank payment transaction only; cheques or bills of exchange will not be accepted by NEXOR
4.10 Subject to and under the conditions of an express agreement between the Parties (“SPECIFIC TERMS and CONDITIONS”) thereof, the Buyer may be also be entitled at his own costs to deliver a letter of credit issued by a major international bank. Such letter of credit must be in accordance with the Uniform Customs and Practice for Documentary Credits, 2007 revision, ICC Publication No. 600.
5. RETENTION OF TITLE
5.1 Until the complete fulfillment of all – including future – claims including all ancillary claims, we reserve ownership of the goods delivered (extended retention of title). The customer is obligated to handle the retained goods with care and to notify us immediately in writing of any pledging, confiscation, damage and loss. A breach of this obligation gives us the right to withdraw from the contract. The customer bears all (out-of-court and/or judicial) costs that arise in particular within the framework of third party proceedings to rescind a pledging and if applicable to reprocure the items delivered if they cannot be collected from third parties. The customer is obligated to insure the retained goods against loss and damage for the time in which the retention of title exists and to notify us of this in writing.
5.2 The customer may not pledge or use the retained goods as security.
5.3 In the event of arrears in payment, or if the customer breaches other fundamental contractual obligations, we are entitled to provisionally take back the retained goods. The exercising of the right to take goods back does not represent a withdrawal from the contract unless we have explicitly declared the withdrawal. The costs arising from exercising the right to take back (in particular for transport and storage) shall be borne by the customer if we have not threatened to take the goods back with a suitable period of notice. We are entitled to utilize the retained goods that have been taken back and to satisfy our claims from the proceeds thereof if we have previously threatened utilization. When issuing the threat, we must set the customer a suitable deadline for fulfilling its obligations.
5.4 The customer already now assigns to us the purchase price, wage or other receivables arising from the re-sale or further processing or other legal grounds (e.g. in an insurance claim or with unlawful action) with regard to the
retained goods (including the recognized balance of a current account agreement and/or, in the event of an insolvency of the business partner of the customer, the
“causal balance” that then exists) amounting to the invoice value of the retained goods; we accept the assignment. We hereby give the customer the revocable authorization to collect the receivables assigned to us on our behalf in its
own name. This authorization to collect can only be revoked if the customer does not meet its payment obligations in an orderly manner. At our request, the customer must provide the information necessary for the collection regarding the
claims assigned, make the corresponding documents available and notify the debtor of the assignment.
5.5 If the realizable value of the securities granted to us pursuant to the aforementioned provisions exceeds our claims towards the customer by more than 10%, and not only temporarily, we will release securities in this respect at our own discretion and at the customer’s request. The aforementioned coverage limit of 110% is increased by the amount of VAT that we are charged in utilizing the security
collateral and that arises from the delivery by the customer to us being subject to VAT.
6. RIGHTS WITH MATERIAL DEFECTS, DAMAGES
6.1 If the purchase is a commercial transaction for both parties, the customer must give written notice of any kind of defects within ten working days (Saturday is not classed as a working day) from delivery – hidden defects, however, within ten working days of their discovery; otherwise, the goods are deemed to have been approved.
6.2 Insofar as any defect of the purchased good is present with passage of the risk we are entitled to subsequent fulfillment at our discretion in the form of either correction of the defect (subsequent improvement) or the delivery of a defect-free item (replacement delivery). The subsequent fulfillment does not include the costs of installing and removing the defect good, independently of an original possible obligation. In the case of subsequent fulfillment we are obliged to bear all necessary costs of the subsequent fulfillment, especially the costs for routing, shipping, material and labour (but not for installing and removing of the good), insofar as these costs are not increased by a relocation of the purchased good to a place other than the place of fulfillment.
6.3 If we are unwilling or unable to provide subsequent improvement/replacement delivery, in particular if this is delayed beyond appropriate lengths of time for reasons for which we are not responsible, or if the subsequent improvement/replacement delivery fails, the customer is entitled, if further attempts at subsequent fulfillment cannot be deemed acceptable for it, at its discretion, to withdraw from the contract or reduce the purchase price.
6.4 There are no claims as the result of material defects from unsuitable or improper use or handling of the item delivered, natural wear and tear (in particular of wear parts) and excessive use (especially because of the nonobservance of the instructions enclosed or affixed on the good).
6.5 If the purchased good is delivered to and installed by a specialist dealer, the specialist dealer is responsible for the appropriate installation and maintenance. The specialist dealer must also point out to the customer, that the purchased good/device may only be used properly and in accordance with the instructions.
6.6 The limitation period for claims arising from material defects is one year. In the event of injury to life, body or health caused by us or in cases of willful intent and gross negligence, the limitation period for material defect claims – by way of derogation of sentence 1 – is two years.
6.7 Claims of the customer in regard to damages or compensation for futile expenses due to a defect of the good only exist under the further requirements of number 7. The in number 6.6 mentioned limitation periods also apply for any claims for damages or compensation of expenses of the customer, unless applicable regular limitation periods after sec. 195, 199 German Civil Code would result in a shorter limitation period.
6.8 The customer may only withdraw from or terminate the contract due to an infringement of an obligation not constituted by a defect if we are responsible for the breach of duty.
7. LIABILITY, VIGILANCE
7.1 Insofar as not otherwise derived in these General Terms and Conditions we are liable in accordance with the provisions of the Product Liability Act as well as a violation of contractual or non-contractual obligations under the legal
7.2 We are liable for damage for whatever legal reason concerning fault based liability in cases of willful intent and gross negligence. Provided there was no intentional breach of contract, our liability is limited to the foreseeable, typically
occurring damage. Subject to a milder liability criteria (for example the diligence we exercise in our own matters), in cases of simple negligence we are only liable
a) for damages resulting from the injury to life, body or health,
b) for damages resulting from the breach of noninsignificant contractual duties (so called major obligations), that is a duty whose fulfillment makes the due performance of the contract possible in the first place and where the customer regularly relies on, as well as a duty whose breach jeopardizes the achievement of the purpose of the contract. In this case our liability is limited to the foreseeable, typically occurring damage.
7.3 If our liability is restricted according to the aforementioned provisions in number 7.2, this also applies to the personal liability of our staff, employees, workers, representatives and vicarious agents.
7.4 The aforementioned restrictions of liability under number 7.2 and 7.3 do not apply insofar as we have maliciously failed to disclose a defect, have assumed a guarantee for the conditions of the good or for claims of the customer relating
to the Product Liability Act.
7.5 Claims for damages of the customer under the provisions of number 7 are subject to limitation according to the legal regulations.
7.6 If the intellectual property rights of third parties are breached by an object to be delivered that has been created based on deliveries, samples or other specifications of the customer, the customer shall indemnify us from all claims that are filed in this respect.
7.7 The customer is obligated to sustain a product documentation of medical devices bought from us, to notify us in case of vigilance cases and to support us with
informing the end customer of the goods delivered to the customer.
8. PLACE OF JURISDICTION AND APPLICABLE LAW
8.1 For these General Terms and Conditions of Delivery and Payment and the entire legal relationships between us and the customer, the law of the Federal Republic of Germany applies to the exclusion of the UN Convention on Contracts
for the International Sale of Goods (CISG).
a) If the customer is a merchant pursuant to the German Commercial Code (HGB), a legal entity under public law or a special asset under public law, the place of jurisdiction for all rights and obligations of the participants to the contract arising from any form of transaction – including disputes relating to bills of exchange and checks – is 78532 (Federal Republic of Germany). This applies accordingly if the customer does not have a general place of jurisdiction in Germany, moves its place of residence or normal domicile away from Germany, or its place of residence or usual domicile is not known at the time the action is
b)However, we are also entitled to file legal action against the customer at the latter’s general place of jurisdiction.
8.3 Should the contract or these General Terms and Conditions contain any legal loopholes, such a gap is filled with a valid condition that both parts would have agreed upon according to the commercial aims of the contract and the purpose of these General Terms and Conditions, if they had known the legal loophole.
9 – INSPECTION OF GOODS
9.1 When NEXOR notifies the Buyer that the goods are ready for collection, Buyer has the right to ask for goods inspection before delivery. Any cost generated by this
activity is due to Buyer.
9.2 The Buyer shall not refuse to take receipt of deliveries on account of insubstantial defects.
9.3 The Buyer shall be obliged to examine the goods after delivery without delay. The Buyer loses the right to rely on a defect of the goods, including all warranty rights, if he does not notify NEXOR about the nature of the defect within a
reasonable time, at latest however two weeks after he has discovered or ought to have discovered it.
9.4 Transport-damages and any obvious deterioration of the goods shall be reported to NEXOR within 7 (seven) calendar days after delivery.
9.5 Obvious transport damages have to be notified immediately towards the freight carrier. The acceptance of the goods should be refused. The damage has to be noticed on the freight documents (consignment note) and has to be confirmed by a signature of the freight carrier on same document by giving a description of the transport damage as detailed as possible.
9.6 The Buyer shall not be entitled to any warranty claims, if the Buyer fails to examine the goods or to notice them to NEXOR or the freight carrier, especially if the notifications received later as stated in these clauses can be rejected by
the transport insurance company.
10 – WARRANTY
10.1 The Buyer shall not be entitled to any warranty claims in the event of merely insubstantial deviations from the agreed specifications or in the event of a mere insubstantial impairment of usability.
10.2 The Buyer shall neither be entitled to any warranty claims in the event of normal wear and tear, in the event of damage or losses arising after the passage of risk due to incorrect or negligent treatment or handling, excessive use, unsuitable operating material, defective constructions or foundations or by reason of exceptional external influences not attributable to NEXOR.
10.3 If and to the extent improper alterations to the goods are carried out by the Buyer or by third parties, any defectrelated claims with regard to the respective goods shall cease.
10.4 In the event of a justified complaint of defects, i.e. upon the presence of defects in quality which, or whose cause, already existed at the time of passage of risk, NEXOR shall be entitled to provide remedy (elimination of defects) or
substitute delivery (delivery of a replacement), at its option.
10.5 The substitute performance contains neither the disassembling of the defective product nor the assembly and installation works of the new/defect free product, if we were not obliged originally to the installation. NEXOR shall bear the
costs for substitute materials, excluding transport, delivery,
custom duties, installation and any other cost if not differently agreed. Claims for damages regarding the compliant of defects, i.e. transport, delivery, custom duties,
costs for disassembling, installation, assembling, testing into operational use (= “replacement costs”) in cases where Assembly Works where originally not to be provided by NEXOR and other claims for damages shall be governed by
10.6 If NEXOR delivers a defect-free item for the purpose of substitute delivery, the Buyer shall, upon request of NEXOR, return the defective item at Buyer costs. This shall apply mutatis mutandis to defective components, if these are replaced with defect-free components within the framework of remedy works by NEXOR. Clause 10.2 apply accordingly.
10.7 Any consequences prescribed by law or Section 10.2 with respect to a breach of the duty to inspect the goods and file a complaint in due time after delivery shall remain unaffected by the foregoing.
10.8 All warranty claims shall expire with twenty four (24) months from delivery in cases of assembly Works. This shall not apply with regard to damage claims based on a violation of life, body or health, or on intentional or grossly negligent conduct.
11 – TAKING BACK GOODS AND DISINFECTION
11.1 Return shipment of defect-free goods shall be subject to the NEXOR‘s prior written consent. If confirmed NEXOR is entitled to charge a flat rate processing fee at the rate of 30% of the price of the goods. The Buyer shall bear all transportation expenses and risk. NEXOR is entitled to refuse to accept returned defect-free goods if it has not given its consent beforehand.
11.2 Any taking back of returned goods (defect – free as well as the defective items) requires prior to any delivery to NEXOR the confirmation of correct disinfection. This confirmation is necessary to avoid any possible contamination of our employees, other products or our production environment. All goods not disinfected in a proper way or without such confirmation will be rejected by NEXOR.
12 – INDUSTRIAL AND INTELLECTUAL PROPERTY
12.1 NEXOR retains full and exclusive intellectual and industrial property of its brands, designs, drawings, photographic reproductions, images, models and know-how related to its products, and all other information and document in any way communicated to the Buyer during the order/s negotiation and/or execution, including, without any limitation, rights of reproduction, processing, disclosure,
modification and implementation of projects, models and drawings themselves. The Buyer is therefore not entitled to use the plans, drawings and documents sent by NEXOR for purposes unrelated to the specific contract, offer, and/or project; in any case the Buyer is subjected to confidentiality of information classified as confidential (or considered such by nature) of which the Buyer has become awarded during the execution of the contract and/or project analysis.
12.2 The Buyer also authorizes NEXOR to crate, at its own expenses, photographic documentation and videos that represent or reproduce, even partially, the places/premises where the products to be delivered have been installed.
Buyer authorizes the use by NEXOR of such documentation for commercial purposes in catalogues, brochures, leaflets and NEXOR’s website.
ADDITIONAL TERMS AND CONDITIONS FOR ASSEMBLY WORKS AND SERVICES
The following terms and conditions apply additionally with regard to and in case of the provision of assembly works by NEXOR for the Buyer
13 – MEASUREMENT METHODS
13.1 The drawings, the dimensions and notes represented in the drawings provided by NEXOR can only be used for the installation of the materials and equipment of specific NEXOR’ supply. The objects represented are located in accordance with the information and drawings received by the Buyer or his representative. In case it would be not possible to verify such dimensions on site, NEXOR will not be liable for any errors or changes that may be needed during installation. In case of extra cost needed to variations needed, these will be notified by NEXOR to Buyer and
subjected to Buyer approval. For all “extra work” requests and/or “special executions”, not part of the offer/purchase order, NEXOR will communicate the new quote separately.
13.2 Calculation of the surface areas of the wall cladding system is to be construed as gross in relation to any type of opening or hole up to the height of the suspended ceiling. In the event of suspended ceilings at more than one height, the highest dimension shall be calculated.
13.3 Calculation of the surface areas of the suspended ceiling is to be construed as gross in relation to any type of opening or hole (including lighting fixtures and air diffusers housings).
13.4 Deviations in respect of the dimensions, weight, technical design, manufacture and scope of the goods to be delivered shall be permissible within reasonable productspecific tolerance limits. We reserve the right to make minor and reasonable changes to our products with regard to shape, color, material and design.
14 – PREPARATION OF ASSEMBLY
14.1 Condition for the due and timely provision of the assembly works by NEXOR (hereinafter the “Works”) is that
– all technical and contractual details and specifications are clarified;
– the Buyer has provided for all necessary constructional, technical and legal conditions for the provision of the Works;
– the Buyer has ensured that the place of assembly is accessible for all necessary machines, materials and equipment;
– the necessary permits of third parties, including:
municipalities, gas- water and energy suppliers have been granted. The provision of these permits shall be in the responsibility of the Buyer; however, NEXOR is entitled to file necessary notifications to the competent authorities on
behalf of Buyer; Buyer shall bear the incurred costs;
– the assembly site is: clean and dry, with availability of adequate light and floor levelling (+/-1,5mm per 2m) ;
– the Buyer has submitted correct architectural drawings;
– the Buyer has approved and signed the final assembly plan and drawings before pre-production and supply of components.
14.2 The Buyer has to provide to NEXOR the following free of charge for the time of preparation of the Works and during execution:
– All local tax, duties, H&S particular requirements, work permit and visas related to supplied materials and/or personnel;
– Local transportation and logistic support for materials and installation team, including off-loading, portage and storage of the supplied materials;
– an adequate number of experienced, qualified and instructed staff members;
– appropriate rooms for the secure storage of equipment and materials;
– appropriate site surveillance;
– all waste removal and waste management, including final cleaning of the site at hand over;
– the amounts of energy, water, light, electric grid, medical gases, pipes, etc. necessary for the provision of the Works, including test runs;
– the coordination of the Works as well as the definition of connections and correlations with the other project members, to the extent they affect the provision of the Works by NEXOR;
14.3 NEXOR’s unit prices does not include the following cost which has to be quoted separately upon request of the Buyer:
– VAT and/or any tax applicable;
– air cargo packaging and /or wooden packaging or cages (upon request charged at cost price);
– installation activities and installation tools (charged separately upon request);
– shipping and insurance costs;
– site survey and project management activities;
– personnel local accommodation and living allowance;
– spare parts;
– the holes in the supplied wall panels are produced in factory, in coordination with the competent specialist planners and drawings provided by Buyer. In case of lack or information and/or upon request of Buyer, holes can be created on site but the following extra cost will be charged by NEXOR ot Buyer: 15,00euro/hole
– electrical installation, sanitary installation and technical/medical gases installation.
15 – FURTHER COOPERATION OF THE BUYER
15.1 If the Buyer requests special marking of the packaging units, e.g. indicating dimensions, recipient of the goods, information in further languages, etc., the respective labels are to be provided by the Buyer.
15.2 To the extent not expressly agreed otherwise, the Buyer shall provide the confirmations and certificates required at the project site as well as any necessary importand export permits. To the extent the respective documents
are to be prepared by NEXOR, the Buyer shall notify NEXOR in due time before.
16 – ACCEPTANCE, PASSING OF RISK
16.1 If the Works (fully or partly finished) are destroyed or damaged before acceptance by acts of God, war, riots, theft or other inevitable circumstances beyond the responsibility of NEXOR, NEXOR shall be entitled to claim remuneration on
a pro rata basis for the parts of the Works that have been completed up to this date.
16.2 If after completion of the Works, NEXOR notifies the Buyers about their completion and requires their acceptance, the Buyer shall be obliged to declare acceptance within 15 (fifteen) days after receipt of the notification. The
acceptance may only be denied in case of material defects and only until such defects are remedied. If NEXOR requests, stand-alone parts of the Works shall be accepted separately. Acceptance is declared by signing of the acceptance protocol by both parties, which shall include any defects yet to be rectified.
16.3 The acceptance shall be deemed to have been declared if the deadline of 15 (fifteen) days has expired without acceptance by the Buyer even though there are no material defects justifying denial.
16.4 If NEXOR doesn’t expressly request an acceptance declaration, the Works shall be deemed to be accepted upon expiry of 30 (thirty) days after NEXOR notifies the Buyers about their completion.
16.5 The Buyer shall bear all costs caused by delayed acceptance of the Works, including but not limited to costs for storage, insurance, security measures, etc.
16.6 Upon acceptance of the Works, the risk of loss or damage of the Works shall pass to the Buyer.
I hereby acknowledge that I have read and understood
NEXOR Medical GmbH terms and conditions and I agree to
all the terms.