General Terms and Conditions

§ 1 Scope of application

The following terms and conditions of business, delivery and payment apply to all contractual and other business relationships, including the declarations and offers made and to be made by MobiTEC GmbH & Co.KG, Berkheim (hereinafter referred to as MobiTEC) to establish them with entrepreneurs and companies, legal entities under public law and special funds under public law (hereinafter referred to as business partners). Upon receipt of the order confirmation and/or acceptance or delivery of the ordered goods or services, the business partner accepts these terms and conditions. They then also apply to all future transactions with the business partner, even if they are not expressly or implicitly agreed again for these. Any deviating terms and conditions of the business partner and confirmations of their validity are hereby contradicted. They are fundamentally ineffective and non-binding unless their effectiveness has been expressly confirmed in writing by MobiTEC. This applies in particular to a deviation from this written form requirement.

 

§ 2 Offers/copyrights/orders/price information

(1) Offers from MobiTEC are always non-binding and subject to change until our order confirmation is received, unless expressly stated otherwise, and are only made on the basis of the current cost and other production bases. The images and drawings enclosed with an offer and the
given dimensions and weights are only for explanation purposes and are generally non-binding. The final price stated in a binding offer only applies to
an undivided order and the business partner has created the opportunity to fully fulfill the order within four months of the offer being made.

Binding offers are limited to the period within which acceptance can be expected under normal circumstances.

(2) Orders and orders must be confirmed by MobiTEC in text form to be effective.

(3) MobiTEC is the author within the meaning of Section 7 of the Copyright Act of the drafts, drawings, reports, calculations and cost estimates it creates, regardless of any commission, contributions or other suggestions from the business partner. It reserves all copyrights to these works. The granting of usage rights, consents or agreements on exploitation rights and legal transactions on moral rights pursuant to Section 39 of the Copyright Act must always be in writing to be effective. Unless expressly agreed otherwise, only a simple usage right, Section 31 II of the Copyright Act, is granted. The works may not be reproduced or made accessible to third parties without the express consent of MobiTEC, even if this is necessary or useful in the context of placing or processing the order.

(4) Cost estimates, drawings, drafts and calculations expressly ordered by the business partner are to be remunerated at the agreed or local rate, regardless of any further orders.

(5) Price information in offers and orders always refers to net amounts plus the applicable sales tax at the statutory rate.

 

§ 3 Delivery periods/delays/deliveries/delay in acceptance/partial deliveries/call-off orders

(1) Binding delivery periods and dates must be expressly agreed as such and stated in the order confirmation. Otherwise, MobiTEC is entitled and obliged to fulfill the order within the scope of its operational possibilities without disproportionate delays.

(2) If the fulfillment of the order is significantly hindered as a result of force majeure or events for which MobiTEC is not responsible that make the completion of the order significantly more difficult - such as in particular strikes, lockouts, official orders and bottlenecks in the supply of raw materials, even if they occur at suppliers or their subcontractors, the agreed delivery periods and dates are extended or postponed by the duration of the hindrance plus a reasonable start-up time. MobiTEC will inform its customer immediately about the occurrence and expected duration of the hindrance. If the hindrance lasts so long that the purpose of fulfilling the order is no longer achieved or is significantly impaired, either of the contracting parties can withdraw from the order due to the unfulfilled part. In this case, the agreed total price is replaced by the share corresponding to the fulfilled part of the order. Further claims are excluded. If MobiTEC does not comply with agreed performance and delivery deadlines for other reasons, the business partner must set a reasonable grace period, unless the performance or delivery date is set on a calendar basis. Claims for damages by the business partner due to delay are excluded unless MobiTEC or its vicarious agents caused the delay intentionally or through gross negligence. The right of the business partner to withdraw from the contract after the delay has occurred in accordance with the statutory provisions or to demand damages for other reasons remains unaffected.

(3) The place of performance for all services and deliveries by MobiTEC is its factory, unless the services can only be provided at the business partner's premises according to the contractually agreed type or quality. Unless expressly agreed otherwise, deliveries are made from the MobiTEC workshop or warehouse at the expense and risk of the business partner. For agreed deliveries, the business partner must ensure that delivery vehicles can drive directly to the location or warehouse specified by the business partner and be unloaded there. The additional costs incurred by MobiTEC due to additional transport routes or obstructions and delays during unloading must be paid for separately by the business partner.

(4) The risk of accidental deterioration or accidental loss of the object of the order passes to the business partner as soon as the delivery is handed over to the carrier or has left the MobiTEC warehouse for the purpose of dispatch.

(5) If the delivery or handover does not take place on the agreed date for reasons for which the business partner is responsible (delay in acceptance), the risk of accidental deterioration or accidental loss of the object of the order passes to the business partner upon receipt of the notification of readiness for delivery or availability for collection. From this point on, MobiTEC can additionally claim appropriate compensation for storing the object of the order. If the delay in acceptance exceeds a period of three months, MobiTEC is entitled, after prior warning in text form, to sell the object of the order, Section 647 BGB, at standard market conditions on behalf of the business partner and to deduct its outstanding claims and costs from the proceeds of the sale.

(6) MobiTEC is entitled to make partial deliveries, provided that they are reasonable for the business partner and have been announced to him in advance.

(7) If it is agreed with the business partner that MobiTEC will deliver a specified quantity or number of units within a specified period of time, and the business partner is free to request the whole or part of the delivery at specific dates within the specified period of time, the delivery or partial delivery must be requested at least twelve weeks before the desired delivery date. At the end of the specified period of time, MobiTEC is entitled to deliver and invoice the quantities and numbers not yet requested without requesting the delivery.

 

§ 4 Warranty / Liability

(1) MobiTEC guarantees that its works and deliveries are free of material defects in accordance with the following regulations. Minor deviations in
surfaces (color and structure) that result from the type of materials used are not material defects.

(2) In the event of justified complaints about defects in works, a free repair will be carried out in the MobiTEC workshop. The costs of transport for the purpose of
the repair will be borne by the business partner. The repair can be refused if it involves disproportionately high costs in relation to the value of the work and the effects of the defect. If a repair is refused or at least two attempts at repair are unsuccessful,
the business partner can demand a reduction in the remuneration or withdraw from the contract. Further claims are excluded.

(3) In the event of justified complaints about defects in deliveries from MobiTEC, a free replacement delivery of defect-free parts will be made. In this case, the business partner is obliged to return the defective parts to MobiTEC. The transport and shipping costs are borne by the business partner.

(4) MobiTEC is entitled to replace defective parts with equivalent, defect-free used parts by way of repair or subsequent delivery. There is no right to replacement with new parts.

(5) If, after a defect has been identified, the business partner has agreed that he will repair the defect himself or replace defective parts himself, costs will only be reimbursed if the work and other measures carried out and the associated costs have been approved by MobiTEC before the start.

(6) In the event of complaints about defects, MobiTEC can request that the business partner send the defective delivery back to it for inspection in its workshop, or provide it with free photographic documentation of the defect complained of.

(7) Claims for compansation against MobiTEC, regardless of the legal basis, in particular due to breach of contractual, pre- or post-contractual obligations, delay and tort, are excluded unless the damage was caused intentionally or through gross negligence by MobiTEC or its legal representatives and vicarious agents. This exclusion of liability does not affect MobiTEC's liability under the Product Liability Act and for damages resulting from injury to life, body or health resulting from a negligent breach of duty by MobiTEC or its legal representatives and vicarious agents.

 

§ 5 Acceptance / Duty to give notice of defects and to notify

(1) The business partner must accept services and deliveries immediately after the indicated completion or delivery. This also applies to self-contained partial services and deliveries. If the business partner has used or processed services and deliveries or parts thereof, acceptance is deemed to have taken place upon use or processing.

(2) The obligations and legal consequences for the business partner under Section 377 of the German Commercial Code (HGB) apply without restriction, with the proviso that completeness must also be checked immediately using the delivery notes and that deviations and defects must be reported in writing.

(3) In the event of a disagreement about the existence of a defect, MobiTEC can call in a publicly appointed and sworn expert to examine the matter. The business partner must reimburse all costs incurred by MobiTEC as a result of unfounded complaints about defects.

 

§ 6 Invoices/Deferred payment

(1) All invoice amounts, including those for partial services, are due immediately upon receipt of the invoice and acceptance without any deductions unless expressly agreed otherwise. Payments by bill of exchange are only permitted by special agreement. Bills of exchange and checks are only accepted as payment, not in lieu of payment.

(2) The business partner is in default of payment if the invoice amount is not paid in full by the agreed payment date, upon receipt of a first reminder or by the end of the 30th day after the due date and receipt of the invoice. From the time of default, due invoice amounts are subject to interest at 8% above the base interest rate. Due to the expense of further reminders after default, MobiTEC is entitled to demand a flat rate of € 10.00 per reminder letter as damages for default, unless the business partner proves that MobiTEC incurred no or less expense for the further reminders. The assertion of further damages due to delay remains unaffected by the above provisions. If the business partner does not comply with the agreed payment agreements, MobiTEC is entitled to set a grace period with a threat of withdrawal and, after this period has expired, to withdraw from the contract and demand compensation.

(3) If the business partner's ability to pay or creditworthiness deteriorates significantly after the contract has begun, MobiTEC is entitled to demand appropriate advance payments or security within a set period. If these are not paid or are not paid in full and on time, MobiTEC is entitled to withdraw from the contract and demand compensation.

 

§ 7 Retention of title, extended

All goods and other services delivered remain the property of MobiTEC until the invoices issued for them have been paid in full and, in the case of a current account agreement, until the current account balance has been settled in full. The business partner is permitted, revocable at any time, to resell or process the deliveries as part of proper business operations. In the event of the sale of the reserved property, the business partner assigns his claims against his buyer with all ancillary rights to MobiTEC, which accepts this assignment. On request, the business partner is obliged to name the buyers of their reserved property to MobiTEC, to state the respective amount of his claims and to provide copies of the contract documents, delivery notes and invoices. The business partner remains entitled, revocable at any time, to collect the assigned claim from his customer. In this case, he is obliged to immediately forward the collected amounts to MobiTEC until the claim has been paid in full. The business partner is obliged to adequately insure the items against fire, water, theft and burglary for the duration of the retention of title. In the event of the occurrence of the insured event, he assigns the insurance claims in the amount of the outstanding claims to MobiTEC, which accepts this assignment. Pledging or transferring ownership of the items subject to retention of title as security is prohibited. The business partner must immediately notify MobiTEC in writing of any seizure of the items subject to retention of title and inform the seizure creditors of the retention of title. If the business partner processes items subject to retention of title, the new item resulting from the processing takes their place.

 

§ 8 Supplied items / delivery

If the business partner has commissioned MobiTEC to work on systems and machines, in particular motor vehicles, boats and carriages, he must ensure the technical safety of the systems and machines during the execution of the order. Regardless of his fault, he must reimburse MobiTEC for all damages and additional expenses incurred as a result of technical errors that were not the subject of the MobiTEC order.

 

§ 9 Delivery

(1) Orders to the supplier can also be effectively concluded by the business partner's order confirmation in text form. If the business partner's order confirmation
deviates from an earlier order confirmation from MobiTEC, the deviation is contradicted and the content of the order confirmation from MobiTEC applies, unless the deviation is expressly approved by MobiTEC in text form.

(2) VAgreed delivery dates are generally binding. This also applies to delivery dates specified by MobiTEC for partial deliveries if it is agreed that
the business partner delivers a specified quantity or specified number of units within a specified period of time and MobiTEC is free to request the entire delivery or parts of the delivery on specific dates within the specified period of time. The business partner must immediately report delivery delays if there is a clear risk that a delivery date cannot be met.

(3) Deliveries and partial deliveries must be announced 24 to 36 hours in advance at the purchasing department or at the MobiTEC goods receiving department. In principle, deliveries must only be made during the opening hours of the MobiTEC goods receiving department/delivery warehouse. Deliveries made after the goods receiving department closes are deemed to have been made on the next opening day.

(4) The supplier is in default if a delivery date is exceeded. He must reimburse MobiTEC for all damages and additional costs incurred as a result. MobiTEC is entitled to charge the supplier a flat fee of €150.00 for each day of the delay in changing production planning as a result of the delay, up to a maximum of 10% of the value of the delayed delivery, unless the supplier can prove that MobiTEC incurred no or only a lower expense for replanning production. The right to compensation for other damages caused by delay remains unaffected by this regulation. Objections due to unconditional acceptance of delayed deliveries are excluded.

(5) The supplier guarantees that the delivery items are free from material defects. Deliveries are examined by MobiTEC using recognized sampling procedures within 2 working days of delivery. Defects discovered during this process are reported immediately. Approval of other defects not discovered during this process is excluded if the other defect discovered later is reported immediately after it becomes known.

(6) If the delivery items are defective, the supplier must, at MobiTEC's discretion, immediately remedy the defects (repair) or deliver similar, defect-free items (subsequent delivery). If two attempts at repair fail, or if a subsequent delivery is again defective, MobiTEC is entitled to remedy the defect itself or through a third party without further notice and to demand the costs incurred as a result. MobiTEC has the same right if, after notification of the defect, there are significant reasons for concern that the supplier is unwilling or unable to provide subsequent performance at short notice and therefore there is a risk of significant damage and additional costs. This applies if the supplier exceeds a deadline set for subsequent performance.

(7) The supplier guarantees that the delivery, processing or resale of the delivery items does not infringe any third-party property rights or patents. If third parties make claims against MobiTEC for such violations of law, the supplier must, regardless of its fault, indemnify MobiTEC from all claims by the third party and reimburse all costs of defending against the claim. The assertion of further damages due to such violations of law and their consequences remains unaffected.

(8) Unless expressly agreed otherwise, warranty claims by MobiTEC for material defects expire after 24 months from delivery of the end products manufactured with the delivery items, but no later than within 36 months from delivery.

(9) If delivery items are defective within the meaning of Section 3 of the Product Liability Act or if they cause such defects in MobiTEC’s end products when used as intended, the supplier must indemnify MobiTEC against all third-party claims under the Product Liability Act and reimburse the costs of defending against the claim. If a recall is required or ordered by the authorities due to such a defect, the supplier must reimburse MobiTEC for all costs and expenses incurred as a result. These claims cannot become time-barred before the claims against MobiTEC expire under Section 13 of the Product Liability Act.

(10) For each delivery or service, the supplier must send a separate invoice for each delivery note separately from the delivery. Unless otherwise agreed, the invoice amount is due within 30 days of receipt of the invoice.

(11) Documents, data, IT information, software, materials, type-specific tools or devices and objects (e.g. samples, models) - hereinafter referred to as "material" - that MobiTEC makes available to the supplier for the execution of an order must be handled carefully by the supplier, maintained and insured upon request. All rights to these, with the exception of the order-related joint usage rights, belong solely to MobiTEC. The material may not be used for purposes other than those related to the order, nor may it be reproduced or made accessible to third parties without written consent. Products that are manufactured using the material according to our specifications or with significant involvement in the development may only be delivered to third parties with our written consent. If the supplier purchases such material from MobiTEC or from third parties at their expense specifically for the purpose of executing the order, or if it is agreed that MobiTEC can or must purchase the material at the latest after execution of the order, the above provisions apply accordingly.

 

§ 10 Miscellaneous

(1) The law of the Federal Republic of Germany applies to all business relationships. The applicability of the uniform UN Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded.

(2) The place of jurisdiction for all disputes arising from orders and contracts is the registered office of MobiTEC in Berkheim.

(3) The business partner agrees that MobiTEC may electronically store and process the data collected as part of the business relationship and use it for its own purposes and that of its affiliated companies.