General terms and conditions
§ 1 Validity of the conditions
- The deliveries, services and offers of MobiDes GmbH are provided exclusively on the basis of these terms and conditions. These are therefore also valid for all future business relations, even if they are not expressly agreed again. At the latest with the receipt of the goods or services, these terms and conditions shall be deemed accepted. The validity of the customer's general terms and conditions of business, in particular terms and conditions of purchase, are hereby objected to, i.e. they are also is not recognized if MobiDes GmbH does not expressly contradict you again after receipt by MobiDes GmbH.
- Deviations from these terms and conditions are only effective if MobiDes GmbH confirms them in writing.
§ 2 offer and conclusion of contract
- Declaration of acceptance and all orders require written or telex confirmation by MobiDes GmbH to be legally effective. The same applies to supplements, modifications or subsidiary agreements. In the case of immediate delivery, the written confirmation can also be replaced by an invoice.
- Drawings, illustrations, dimensions, weights and other services are only to be understood as approximate values and in particular do not represent any assurance of properties, unless they are expressly designated as binding in writing.
- The sales staff of MobiDes GmbH are not authorized to make verbal side agreements or to give verbal assurances that go beyond the content of the written contract.
- If a customer exceeds his credit limit by calling it up, MobiDes GmbH is released from its delivery obligation. However, the customer is offered the opportunity to purchase goods against cash payment if their credit limit is exceeded.
- If these general terms and conditions are included retrospectively, a contract is deemed to have been terminated, provided the requirements of Section 2 Number 1 are not met.
§ 3 prices
- Unless otherwise stated, MobiDes GmbH is bound to the prices contained in its offers for 7 days from the date of their availability. The prices specified in the order confirmation by MobiDes GmbH are decisive. Additional deliveries and services will be charged separately.
- The offers of MobiDes GmbH are subject to change and non-binding. Price increases due to currency fluctuations will be charged to the customer for goods that have not yet been delivered.
- Unless otherwise agreed, the prices are plus packaging, environmental fee, cash on delivery, transport, toll, freight insurance, plus the VAT applicable on the day of delivery from the MobiDes GmbH warehouse or for direct delivery from the German border or German port of entry.
- MobiDes GmbH charges a small quantity surcharge for orders under 300 €. This does not apply to orders placed online.
§ 4 delivery and performance time
- Dates and delivery times are non-binding, unless otherwise expressly agreed in writing. The specification of certain delivery times and delivery dates by MobiDes GmbH is subject to the correct and timely delivery of MobiDes GmbH by suppliers and manufacturers.
- Delays in delivery and performance due to force majeure and other unforeseeable events that make delivery difficult or significantly impossible for MobiDes GmbH and for which MobiDes GmbH is not responsible (this includes in particular war, war-like events, official orders, non-issuance of exclusions, Import or transit permits, national measures to restrict trade, strikes, lockouts and other operational disruptions of any kind, traffic disruptions, natural events, regardless of whether these events occur at MobiDes GmbH, its suppliers or their subcontractors) entitle MobiDes GmbH to the delivery or service for that Postponing the duration of the disability plus a reasonable start-up time or withdrawing from the contract - if not yet fulfilled - in whole or in part.
- If the hindrance lasts longer than 3 months, the customer is entitled to withdraw from the contract in whole or in part - if not fulfilled - after setting a reasonable grace period (at least 14 days). If the delivery time is extended in application of Section 2 or if MobiDes GmbH is released from its obligation, the customer cannot derive any claims for damages from this. MobiDes GmbH can only refer to the above-mentioned circumstances if the customer has been notified immediately.
- If MobiDes GmbH is responsible for the non-compliance with bindingly agreed deadlines and dates and is in default, the customer is entitled to compensation for delay of 1/4% for each completed week of the delay, but in total up to a maximum of 5% of the net invoice value the deliveries and services affected by the delay. Claims beyond this are excluded, unless the delay is at least due to gross negligence on the part of MobiDes GmbH.
- MobiDes GmbH is entitled to partial deliveries and partial services. In the case of supply contracts, each partial delivery and partial service is considered an independent service. The delivery period is also extended by the period in which the customer himself is late in fulfilling his contractual obligations.
- If the date of our delivery or service is not noted on the MobiDes GmbH invoice, it corresponds to the invoice date.
§ 5 Delay in acceptance
- For the duration of the customer's default in acceptance, MobiDes GmbH is entitled to store the delivery items at the customer's risk and expense. MobiDes GmbH can also use a freight forwarder or a warehouse keeper.
- During the delay in acceptance, the customer has to pay MobiDes GmbH a flat rate of 1% of the net invoice value per week as a replacement for the storage costs incurred without further proof, but no more than 30 euros per week - unless the customer proves less damage. In the event of higher storage costs, MobiDes GmbH can demand reimbursement of these costs from the customer upon proof.
- If after the expiry of a grace period set for him, the customer refuses to accept the delivery items, remains silent upon a written request for acceptance, or declares that he does not want to accept the goods, MobiDes GmbH can refuse to fulfill the contract and demand compensation for non-performance. MobiDes GmbH is entitled to either claim a flat rate of 20% of the agreed gross purchase price - unless the customer can prove less damage - or to demand compensation from the customer for the damage actually caused.
§ 6 delivery quantity / incorrect delivery
Visible quantity differences must be reported to MobiDes GmbH and the carrier in writing immediately upon receipt of the goods, hidden quantity differences within 4 days after receipt of the goods. Acceptance of the goods by the freight forwarder or transporter is proof of the correct quantity, proper wrapping and loading.
Furthermore, the customer undertakes to notify MobiDes GmbH in writing of goods delivered inadvertently by MobiDes GmbH without an order from the customer within 14 days at the latest and to have the goods ready for return by a freight forwarder or carrier to be commissioned by MobiDes GmbH. If such a written notification of a faulty delivery is not made or not made on time, it is considered approved, so that the customer is obliged to pay the usual and reasonable purchase price for the goods to MobiDes GmbH.
§ 7 transfer of risk
The risk passes to the customer as soon as the consignment has been handed over to the person performing the transport or has left the MobiDes GmbH warehouse for the purpose of dispatch. If the shipment is delayed or impossible due to no fault of MobiDes GmbH, the risk passes to the customer when the readiness for shipment is reported. An agreed transfer of transport costs by MobiDes GmbH in individual cases has no influence on the transfer of risk.
§ 8 liability for defects / compensation
- Claims for defects on the part of the customer presuppose that the customer has properly complied with his inspection and notification obligations owed pursuant to Section 377 HGB.
- If there is a defect in the purchased item, the customer is entitled to request supplementary performance. At MobiDes GmbH' option, the supplementary performance is carried out either by eliminating the defect or by delivering a defect-free item. In the event of rectification of the defect, the necessary expenses will only be reimbursed to the extent that they have not been increased by the fact that the purchased item has been moved to a location other than the place of performance.
- If the supplementary performance fails, the customer is entitled to request withdrawal or a reduction.
- MobiDes GmbH is liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of MobiDes GmbH' representatives or vicarious agents. As far as MobiDes GmbH is not accused of deliberate breach of contract, the liability for damages is limited to the foreseeable, typically occurring damage.
- MobiDes GmbH is liable according to the statutory provisions if MobiDes GmbH culpably violates an essential contractual obligation; in this case the liability for damages is limited to the foreseeable, typically occurring damage.
- Insofar as the customer is entitled to compensation for damage instead of performance, MobiDes GmbH' liability is also limited in the context of paragraph 3 to compensation for the foreseeable, typically occurring damage.
- Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
- Unless otherwise stipulated above, liability is excluded.
- The limitation period for claims for defects is 12 months, calculated from the transfer of risk.
- The limitation period in the event of a delivery recourse according to §§ 478, 479 BGB remains unaffected; it is five years from the delivery of the defective item.
- If the customer has sent MobiDes GmbH for reworking due to alleged warranty rights and if a check shows that there is actually no defect, the customer MobiDes GmbH has the costs for the inspection of the device or part including the shipping and handling costs incurred To replace packaging costs.
§ 9 total liability
- Any further liability for damages than provided for in § 8.6 is excluded - regardless of the legal nature of the asserted claim. This applies in particular to claims for damages arising from negligence when concluding the contract, due to other breaches of duty or due to tortious claims for damage to property according to § 823 BGB.
- The limitation according to paragraph 1 also applies insofar as the customer requests reimbursement of useless expenses instead of a claim for compensation for the damage.
- Insofar as liability for damages against MobiDes GmbH is excluded or limited, this also applies with regard to the personal liability for damages of its employees, workers, employees, representatives and vicarious agents.
§ 10 Special provisions for software and other digital products with limited rights of use
- If the distribution right concerns software or another digital product whose right of use is limited in time (e.g. subscription software with an annual license), MobiDes GmbH' primary obligation to perform remains limited to the one-off procurement of the distribution right for the term license.
- The end-user's right of use ends at the end of the term. The customer will clearly notify the end users of the time limit of the right of use when reselling.
- Unless there are special service level agreements for software or other digital products with a limited right of use that regulate the customer's rights to defects, the customer receives for the duration of the right of use of the end user in the event of undisputed or legally established defects in the software or one other digital product the right to reduction, provided (i) the defect is not insignificant, (ii) the defect is reported immediately and (iii) a reasonable period of time has elapsed to correct the defect.
- MobiDes GmbH is not liable in accordance with the legal situation for software or other digital products with an unlimited right of use, even when selling software and other digital products with limited rights of use, for damage caused culpably by the manufacturer or his vicarious agents; the manufacturer is not a vicarious agent of MobiDes.
- MobiDes GmbH is liable for its own fault in accordance with the provisions of § 8. Liability for damages without fault of MobiDes GmbH, including for initial defects, is excluded.
- Software and other digital products are provided in accordance with the licensing terms of the suppliers, compliance with which the customer guarantees.
§ 11 return / subsequent performance
Defective products are to be sent to MobiDes GmbH GmbH or, if agreed, to the supplier, stating the model and serial number and a copy of the delivery or invoice documents with a precise description of the error.
By exchanging individual parts, assemblies or entire devices, no new warranty periods regarding claims and rights due to defects come into force. This does not apply to the statute of limitations regarding the parts affected by the rectification of defects.
The customer is obliged to regularly and properly back up data and ensure that the data is backed up before the goods are sent. MobiDes GmbH assumes no liability for lost data and consequential damage. MobiDes GmbH does not cover the costs of backing up data or reinstalling software or the devices themselves with regard to the devices to be repaired.
§ 12 retention of title
- Until all claims that MobiDes GmbH are entitled to against the customer for any legal reason, now or in the future, MobiDes GmbH will be granted the following security by the customer, which MobiDes GmbH will release at the customer's request at his option, insofar as their value sustainably increases the claims by more than 20 % exceeds.
- The goods remain the property of MobiDes GmbH (reserved goods). Any machining or processing is always carried out for MobiDes GmbH as a manufacturer within the meaning of § 950 BGB, without binding MobiDes GmbH. When processing or combining the reserved goods with other goods, MobiDes GmbH generally has a co-ownership share in the new item, namely when processing in the ratio of the value of the reserved goods to the value of the new item, when combined in the ratio of the value of the reserved goods to the value of the other goods . If the customer becomes the sole owner, he already grants MobiDes co-ownership in the ratio of the stated values and stores the item for MobiDes free of charge. If the goods resulting from processing or connection are resold, the advance assignment agreed below applies only in the amount of the value of the reserved goods.
- The customer is entitled to process and sell the reserved goods in the ordinary course of business as long as he is not in default of payment to MobiDes GmbH. Pledges or collateral assignments are inadmissible. The customer already assigns to MobiDes GmbH the full amount of the claims arising from the resale or another legal reason (insurance, unauthorized action) with regard to the reserved goods (including all balance claims from current accounts). He is obliged to collect the claims assigned to MobiDes for his account in his own name until MobiDes notifies him in writing that she would like to do this herself. The direct debit authorization can only be revoked if the customer does not properly meet his payment obligations.
- If third parties access the goods subject to retention of title, the customer will point out MobiDes GmbH' property and notify them immediately.
- If the customer is in default of payment, there is an imminent delay in payment, if his creditworthiness is reduced or if he culpably does not fulfill other essential contractual obligations, MobiDes GmbH is entitled to take back the goods subject to retention of title or to demand assignment of the customer's surrender claims against third parties.
- For security purposes, MobiDes GmbH is given access to the rooms and access to the delivery and accounting documents. In particular, MobiDes GmbH receives a customer balance list with customer addresses on first request.
- There is no withdrawal from the contract in the return or attachment of the reserved goods by MobiDes GmbH, unless the Consumer Credit Act applies.
- The collateral also extends to goods that are unilaterally requested and / or acquired by the insolvency administrator as part of an insolvency procedure by way of a performance choice..
- The assignments are accepted.
§ 13 payment
- Invoices are payable by SEPA direct debit (Single Euro Payments Area) and are payable immediately if so nothing else was agreed. Insofar as payment by SEPA direct debit has been agreed and the contractual partner has given MobiDes a corresponding SEPA direct debit mandate, the following applies:
MobiDes GmbH will generally announce the forthcoming direct debit together with the invoice (or by another means of communication agreed with the contractual partner) at least 1 (one) calendar day before the due date of the direct debit (advance information / "prenotification"). The amount debited may differ in individual cases from the amount communicated in the settlement / invoice or in the advance information if the contracting party has received credit notes and / or correction documents between the preparation of the settlement / invoice or the transmission of the advance information and the due date or individual transactions have been canceled. The amount debited may differ in individual cases from the amount stated in the individual billing / invoice or in the individual advance information if the contractual partner MobiDes has issued the SEPA mandate as a framework mandate for several contractual relationships, the customer has agreed a separate invoice for each contractual relationship / Receives invoice - and accordingly a separate advance information - but the respective billing / invoice amounts have the same due date. In this case, the total amount (= sum of both statements / invoices) is collected on the due date. The contractual partner is obliged to ensure sufficient funds in the account specified in the SEPA mandate and to ensure that the amounts due can be collected by MobiDes. This obligation also applies if the contract partner does not receive advance information in individual cases or does not receive it in good time.
- The delivery is generally unfree, i.e. at the customer's expense by parcel service, freight forwarder or own vehicle, unless otherwise agreed in writing. The goods can be insured against transport damage for a small fee.
- MobiDes GmbH is entitled, despite contrary provisions of the customer, to credit payments against its older debts. If costs and interest have already arisen, MobiDes is entitled to offset the payment first against the costs, then against the interest and finally against the main service.
- A payment is only deemed to have been made when MobiDes GmbH can dispose of the amount. Checks are only accepted on account of performance and only count as payment once they have been finally cleared.
- Any discount deductions may only be made if all due invoices have been paid on time. The incoming payment at MobiDes GmbH is decisive.
- All claims are due immediately if the customer is in default of payment, culpably does not meet other essential obligations from the contract or if circumstances become known that are likely to reduce the creditworthiness of the customer, in particular suspension of payment and / or pending bankruptcy proceedings. In these cases, MobiDes GmbH is entitled to withhold outstanding deliveries or to execute them only against prepayment or security.
- The customer is only entitled to offset or exercise a right of retention if the counterclaims have been legally established or are undisputed.
§ 14 Prohibition of assignment
The assignment of claims against MobiDes GmbH to third parties is excluded unless MobiDes GmbH has expressly consented to the assignment. Unless there are generally unassignable claims acc. § 8 section 8 of these terms and conditions (warranty claims), consent must be given if the customer can demonstrate essential issues that outweigh MobiDes GmbH interests in maintaining the assignment ban.
§ 15 Use of the products
The products are intended for normal commercial use according to the operating instructions and not for use in critical security systems, nuclear power plants, military facilities or medical devices with life support functions or for the manufacture of weapons. No liability is assumed for use in these areas.
§ 16 Intellectual Property Rights
All existing industrial property rights for the products are and remain the property of the suppliers. Any use requires the approval of the supplier.
Insofar as software is included in the scope of delivery, it is left to the commercial customer for one-time resale and the end customer for sole use, i.e. H. he may neither copy nor change it nor let others use it. A multiple right of use requires a special written agreement. The software is supplied in accordance with the supplier's license agreements, the customer of which already guarantees compliance with this.
MobiDes GmbH assumes no liability for the violation of industrial property rights if the products are exported from the "sales country" provided by MobiDes GmbH to another country, since it cannot be guaranteed that all rights are protected there.
§ 17 confidentiality
The customer is obliged to keep all information that is accessible to him in connection with the deliveries of MobiDes GmbH, which due to other circumstances is clearly recognizable as business or company secret of MobiDes GmbH and to be kept confidential, indefinitely confidential and - unless this is not the case Achieving the purpose of the contract is necessary - neither to record nor to pass it on to third parties or to exploit it in any way.
§ 18 Data protection and data storage
- MobiDes GmbH is entitled to process the data about the customer received in relation to the business connections or in connection with them, regardless of whether these originate from the customer himself or from third parties, in accordance with the Federal Data Protection Act. Customer data is stored in accordance with § 33 BDSG.
- The customer agrees that MobiDes GmbH has the right to preserve its own claims and to meet its own obligations, in particular also in the project business (manufacturer-supported end customer business), detailed information about quantities, articles, sales and the name and address of the customer and the end customer to the manufacturer to be delivered at home and abroad (manufacturer reporting).
- Furthermore, the customer agrees that MobiDes GmbH may transmit the data to third parties and use it within the MobiDes GmbH Group in connection with the fulfillment of the contract, for checking payment behavior, collection and for the needs-based design and development of its services and offers. The customer also consents to the transfer of data abroad, provided MobiDes GmbH deems it necessary.
- The customer is responsible for making appropriate data protection regulations in the contractual relationship with the affected third parties or their end customers and for informing the affected third parties about the processing, storage and transfer of data and, if applicable, the order data processing by MobiDes GmbH. The customer is responsible for obtaining the necessary consent from the affected third parties and presenting MobiDes GmbH if necessary.
§ 19 Export
Re-export from the Federal Republic of Germany is subject to German, EU and US export regulations. The customer must ensure that the export permits are obtained from the Federal Export Office in Eschborn. He is responsible for compliance with the relevant provisions up to the end user.
§ 20 Applicable law
- The law of the Federal Republic of Germany applies to the terms and conditions and the entire legal relationship between MobiDes GmbH and the customer, excluding the UN Sales Convention. Insofar as the customer is a fully qualified trader within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the place of jurisdiction at MobiDes GmbH' place of business is for all disputes arising directly or indirectly from the contractual relationship. However, MobiDes GmbH is entitled to sue the customer at any other place of jurisdiction. MobiDes GmbH' place of business is also the place of performance and the place of delivery in the sense of the Packaging Ordinance.
- If one or more provisions of these general terms and conditions should be ineffective or contain a loophole, the contracting parties undertake to enter into negotiations with the aim of replacing or supplementing the ineffective or incomplete provision with a suitable individual agreement that meets the economic purpose of the intended Regulation largely corresponds. The validity of the remaining provisions remains unaffected.
§ 21 Project business
If the manufacturer offers special project prices for project business, the customer must provide MobiDes GmbH with a copy of the proof of delivery of the products and the invoice to the end customer within 10 days of being requested. The customer is obliged to observe the respective guidelines in project business. This also applies to the obligation to retain the documents belonging to the project business in accordance with commercial law and tax law. If the customer violates the MobiDes GmbH guideline or the manufacturer's guideline, MobiDes GmbH has the right to debit the amounts wrongly received by the customer and to exclude the customer from future special project prices.
§ 22 advertising
The customer expressly agrees to receive MobiDes GmbH advertising by fax or email without prior request.
§ 23 Anti-corruption
The cooperation between the customer and MobiDes GmbH should be based on objective and understandable criteria and must not be influenced in an unfair manner by the granting or acceptance of personal benefits such as inappropriate gifts or inappropriate invitations. The customer will therefore not offer or grant personal benefits to MobiDes GmbH employees who intend to influence business processes and decisions in an unfair manner or are capable of doing so. The customer will also oblige his employees not to offer, grant or demand such advantages.