Date: November 2024
General Terms and Conditions for the Sale and Delivery of goods (B2B) of MOBOTIX AG
§ 1 General provisions
(1) These General Terms and Conditions of Sale and Delivery of goods (hereinafter "GTC") of MOBOTIX AG, Kaiserstrasse, 67722 Langmeil (hereinafter "MOBOTIX") apply exclusively to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), i.e. natural or legal persons who, with regard to the purchase of the goods, are acting in the exercise of their commercial or independent professional activities (hereinafter "Customer").
(2) All business relationships with the Customer concerning the sale and delivery of goods shall be governed exclusively by these GTC and any individual contractual agreements made with the Customer. If these GTC have been introduced into the business with the Customer, they shall also apply to the Customer for all future similar business relationships, unless expressly agreed otherwise in writing.
(3) Terms and conditions of the Customer or third parties (in particular General Terms and Conditions of Purchase) shall only apply if and to the extent that MOBOTIX expressly recognizes them in writing. Silence on the part of MOBOTIX with regard to such deviating general terms and conditions shall not be deemed to be recognition or consent, even in the case of future contracts or in the context of an ongoing business relationship. This also applies if MOBOTIX refers to, responds to or refers to a message (e.g. a letter, fax, e-mail or comparable document) that contains the terms and conditions of the Customer or a third party or that refers to such terms and conditions.
(4) These GTC shall apply instead of any general terms and conditions of the Customer even if, according to these, the acceptance of the order is intended as unconditional acceptance of the general terms and conditions or MOBOTIX delivers or performs after the Customer has pointed out the validity of its general terms and conditions, unless MOBOTIX has expressly waived the validity of these GTC in writing.
(5) Customers are exclusively distributors/authorized dealers/installers within the meaning of these GTC. Insofar as services are provided by MOBOTIX on behalf of the Customer to the Customer's end customers, a contractual relationship is only concluded with the Customer of MOBOTIX and not with the end Customer.
§ 2 Offer and conclusion of contract (also via the MOBOTIX Store)
(1) All offers from MOBOTIX are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. If the Customer accepts an offer after the expiry of an acceptance period specified herein, this acceptance shall be deemed to be a new offer by the Customer, which requires acceptance by MOBOTIX. MOBOTIX may accept orders or commissions from the Customer within fourteen (14) calendar days of receipt. The acceptance of an offer (order confirmation) requires - also in ongoing business transactions - at least the text form (§ 126b BGB; e.g. e-mail). A contract may also be concluded by delivery of the goods to the Customer. If an order confirmation is issued, this alone shall be decisive for the content of the contract, in particular for the scope of the delivery and the time of delivery.
(2) Prices and performance specifications as well as other declarations and assurances are only binding for MOBOTIX if they have been submitted or confirmed by MOBOTIX in writing or in text form.
(3) As an option, existing customers who have individual access data for the MOBOTIX Store can place their orders in the MOBOTIX online store ("MOBOTIX Store"), which can be accessed at www.mobotixstore.com. Before the Customer can enter the MOBOTIX Store, he must confirm his consent by clicking on the buttons "I accept the General Terms and Conditions for the Sale and Delivery of Goods (B2B) of MOBOTIX AG" and "I accept the Privacy Policy" after his first login. The MOBOTIX Store shows the product portfolio, the prices, the freight costs for UPS standard shipping and Express Saver shipping, if these are offered by MOBOTIX for the selected delivery address or for the order/order quantity (max. 400 liters), as well as the Customer's discounts. To order goods in the MOBOTIX Store, they must first be selected and then placed in the shopping cart (click on "Shopping cart"). Clicking on the "Checkout" button ("Checkout", "Cassa", "Pedido") takes the Customer to the checkout area. Here, the Customer can choose whether they wish to receive the order in one delivery or in several parts. In order to recognize and prevent input errors during the ordering process, the Customer is taken to an overview page before the order becomes effective, with the help of which he can check all details of the order (goods, price, etc.) and correct the data entered using the "Back" arrow ( ) in the online store. The Customer then selects the shipping method. They can choose between UPS Standard and UPS Express Saver, provided these are offered for the Customer's delivery address or for the order/order quantity (max. 400 liters). If UPS Standard and UPS Express Saver cannot be offered, the Customer will only be offered "Alternative shipping method", for which the specified prices plus freight costs apply, which will be agreed individually with the Customer. Alternatively, the Customer can specify in the text field the collection of the goods by the Customer himself at the MOBOTIX location or the order under "Alternative shipping method" plus freight costs. By clicking on the button "Binding Purchase" ("Acheter obligatoirement", "Acquisto vincolante", "Compra vinculante"), the Customer concludes his order bindingly, declares his agreement to the exclusive validity of these GTC and transmits his order to MOBOTIX. After receipt of the order by MOBOTIX, the Customer receives an automatically generated message in the MOBOTIX Store or an e-mail confirming receipt of the order and in which the Customer's order is listed again. This message in the store or e-mail is not an acceptance of the contract offer and merely a declaration that the order has been received. The contract is only concluded when MOBOTIX sends an order confirmation to the Customer or when the goods are delivered to the Customer.
(4) The contract between MOBOTIX and the Customer (the "Contracting Parties") shall be governed solely by the contract concluded in writing, including these GTC. Unless otherwise agreed in writing, this contract fully reflects all agreements between the Contracting Parties regarding the subject matter of the contract. Verbal commitments made by MOBOTIX prior to the conclusion of the contract are not legally binding. Previous verbal agreements between the contracting parties are replaced by the written contract, unless it is expressly stated in each case that they are to continue to be binding.
(5) The agreed quality of the products results exclusively from the order confirmation. Information provided by MOBOTIX on the subject matter of the delivery or service in the product data sheets (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) and representations thereof (e.g. drawings and illustrations) are only authoritative if this has been expressly marked in writing or in text form as "legally guaranteed" or "assumption of the procurement risk". Unless this is expressly marked as "characteristic of the product". Otherwise, they are not guaranteed characteristics, but descriptions or identifications of the delivery or service. Customary deviations and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permitted, provided they do not impair the usability for the contractually intended purpose.
(6) MOBOTIX does not guarantee or warrant that the products can be used for the purposes intended by the Customer, unless otherwise agreed in writing. It is the sole responsibility of the Customer to check and determine whether the products can be used for the intended purpose.
(7) MOBOTIX is only obliged to perform from its own stock of goods (stock debt).
(8) MOBOTIX reserves the ownership or copyright to all offers and cost estimates submitted by it as well as drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids made available to the Customer (the "Offer Objects"). The Customer may not make the Offer Objects accessible to third parties, either as such or in excerpts or in terms of content, disclose them, use them itself or through third parties or reproduce them without the prior express written consent of MOBOTIX. At the request of MOBOTIX, the Customer must return the offer items in full and destroy any copies made immediately at its own expense.
§ 3 Prices and terms of payment
(1) The prices quoted by MOBOTIX apply to the scope of services and delivery listed in the offer. The prices are in EURO plus the applicable statutory value added tax. Unless otherwise agreed in writing or in text form, the prices are ex works or ex warehouse of MOBOTIX (EXW Incoterms 2020), in particular excluding packaging and shipping costs as well as customs duties and plus freight. Unless otherwise agreed in writing between the Parties, additional or special services shall be remunerated separately and shall be agreed separately.
(2) MOBOTIX is entitled at its reasonable discretion (Section 315 BGB, subject to judicial review pursuant to Section 315 para. 3 BGB) to unilaterally increase the prices for the deliveries and services in the event of an increase in manufacturing, material and/or procurement costs, wage and ancillary wage costs, social security contributions and energy costs and costs due to legal requirements, environmental regulations, currency regulations, changes in customs duties and/or other public charges if these directly or indirectly affect the costs of the contractually agreed deliveries and services and increase them by more than 5% and if there are more than 2 months between the conclusion of the contract and the delivery/service. An increase in the aforementioned sense is excluded if the cost increase for individual or all of the aforementioned factors is offset by a cost reduction for other of the aforementioned factors in relation to the total cost burden for the delivery/service (cost netting). If the aforementioned cost factors are reduced without the cost reduction being offset by an increase in cost factors other than those mentioned above, the cost reduction shall be passed on to the Customer in the form of a price reduction. If the new price is 25% or more higher than the original price due to the aforementioned price adjustment right, the Customer is entitled to withdraw from contracts that have not yet been completely fulfilled with regard to the part of the contract that has not yet been fulfilled. However, he may only assert this right immediately after notification of the increased remuneration.
(3) Invoice amounts are due immediately upon invoicing without any deduction, unless otherwise agreed in writing or in text form. The date of payment shall be determined by the date of receipt of the payment in the account of MOBOTIX specified to the Customer. Reference is made to section 10 paragraph (4). Checks shall not be deemed payment until they have been cashed. In the event of default in payment, default interest of nine (9) percentage points above the respective base interest rate (Section 247 (1) BGB) p.a. (Section 288 (2) BGB) shall be charged. The assertion of higher interest and further damages in the event of default shall remain unaffected by this.
(4) The Customer's means of payment is stored in the MOBOTIX Store. The Customer shall pay in advance.
(5) A right of retention of the Customer, insofar as it is not based on the same contractual relationship, as well as offsetting against disputed or not legally established claims are excluded. MOBOTIX is entitled to avert the exercise of the right of retention by providing security, including a guarantee.
(6) MOBOTIX is entitled to perform or render outstanding (partial) deliveries or (partial) services to customers only against advance payment or provision of security if MOBOTIX becomes aware of circumstances after conclusion of the contract which are likely to significantly reduce the Customer's creditworthiness and which jeopardize the payment of MOBOTIX's outstanding claims by the Customer arising from the respective contractual relationship.
§ 4 Delivery and delivery time
(1) The specified delivery period is non-binding unless otherwise agreed with the Customer in writing or in text form and does not begin before receipt of the purchase price payment by the Customer to the account of MOBOTIX (advance payment). In the case of non-binding or approximate (approx., about, etc.) delivery periods and dates, MOBOTIX shall endeavor to meet these to the best of its ability. Binding delivery periods agreed in writing or in text form shall commence upon receipt of the purchase price payment by the Customer in MOBOTIX's account, but not before all details of the execution of the order have been clarified and all other requirements to be fulfilled by the Customer have been met; the same shall apply to delivery dates. Deliveries before expiry of the delivery period are permitted. Delivery deadlines are only binding if they are expressly designated as such.
(2) All deliveries by MOBOTIX shall be made ex works (EXW Incoterms 2020) MOBOTIX AG, Kaiserstraße, 67722 Langmeil, Germany, unless otherwise agreed in writing between the contracting parties.
(3) In the case of a shipment abroad at the instigation of the Customer, delivery periods and/or delivery dates agreed or promised by MOBOTIX shall in this case refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.
(4) MOBOTIX shall not be liable for delivery delays, failures or defective services if these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract for which MOBOTIX is not responsible and if MOBOTIX does not receive deliveries or services from its subcontractors, or does not receive them correctly or on time, despite proper and sufficient coverage in accordance with the quantity and quality of the delivery or service agreement with the Customer. In such cases, MOBOTIX shall inform the Customer of this in good time in writing or in text form. If such events make it significantly more difficult or impossible for MOBOTIX to provide the delivery or service and the impediment to performance is not only of a temporary nature, MOBOTIX is entitled to withdraw from the contract. In the event of impediments to performance of a temporary nature, the performance deadlines shall be extended or the delivery dates postponed by the period of the impediment.
(5) If a delivery and/or performance date is exceeded due to events in accordance with § 4 paragraph (4) above, the Customer is entitled to withdraw from the contract due to the unfulfilled part of the contract after a reasonable grace period has expired without result. Further claims of the Customer, in particular claims for damages, are excluded in this case, provided that MOBOTIX has fulfilled its above obligation to provide information. The above provisions pursuant to § 4 (4) apply accordingly if, for the reasons stated in § 4 (5), it is objectively unreasonable for the Customer to continue to adhere to the contract even without a contractual agreement on a fixed delivery and/or performance date.
(6) Force majeure and events unforeseeable at the time of conclusion of the contract include operational disruptions of all kinds, in particular fire damage and floods, earthquakes, strikes, lockouts, official interventions, epidemics and pandemics, energy and raw material shortages, transport bottlenecks through no fault of our own, war, warlike conditions, boycotts, trade embargoes, unavailability of Internet connections or other data transmission networks, difficulties in obtaining the necessary official permits or official measures.
(7) If dispatch is delayed at the Customer's request or for reasons for which the Customer is responsible, MOBOTIX is entitled, beginning with the expiry of the reasonable period set in writing or text form in the notification of readiness for dispatch, to store the goods at the Customer's risk for loss or deterioration, to store the goods at the Customer's risk for loss and deterioration of the goods and to invoice the resulting costs at 0.5% of the net invoice amount of the stored goods for each commenced week (Monday - Sunday) (up to a maximum total amount of 10% of the net invoice amount of the stored goods). The stored goods shall only be insured at the special request of the Customer. The assertion of further rights remains unaffected. The Customer reserves the right to prove that no or significantly lower costs were incurred.
(8) MOBOTIX is entitled to make partial deliveries, provided that
- the partial delivery can be used by the Customer for the contractually intended purpose,
- the delivery of the remaining ordered goods is ensured and
- the Customer does not incur any significant additional work or additional costs as a result (unless MOBOTIX agrees to bear these costs).
(9) If MOBOTIX is in default with a delivery and/or service or if a delivery and/or service becomes impossible for whatever reason, MOBOTIX's liability for damages shall be limited in accordance with the following § 9 of these GTC. The above § 4 paragraph (5) of these GTC remains unaffected by this.
§ 5 Place of fulfillment, shipping, packaging, transfer of risk, transfer of ownership
(1) The place of performance for all obligations of MOBOTIX arising from the contractual relationship is its registered office. In the event of a delivery of the goods agreed in writing between the contracting parties, the place of performance shall be the delivery address specified by the Customer. In the event of delivery abroad arranged by the Customer, the place of performance shall be the place where the products to be delivered are handed over to the forwarding agent, carrier or other third party commissioned with the transportation.
(2) The shipping method and packaging are subject to the dutiful discretion of MOBOTIX.
(3) The risk of accidental loss and accidental deterioration of the products to be delivered shall pass to the Customer upon notification and provision of the products to be delivered on the premises of MOBOTIX. In the case of delivery of the products arranged by the Customer, the risk shall pass to the Customer at the latest when the products are handed over to the Customer or other third parties at the delivery address notified to MOBOTIX or to the forwarding agent, carrier or other third party designated to carry out the delivery (whereby the start of the loading process shall be decisive). If the delivery is delayed due to a circumstance for which the Customer is responsible or if the shipment is made at the Customer's request at a later date than the agreed delivery date, the risk shall pass to the Customer at the time of notification and readiness for shipment of the products to the Customer; MOBOTIX is obliged to take out the insurance requested by the Customer at the Customer's request and expense.
(4) The earliest time of transfer of risk corresponds to the time of transfer of ownership if and insofar as the Customer has paid the purchase price in full to MOBOTIX at this time.
(5) Unless specifically requested by the Customer, a delivery shall not be insured against theft, breakage, transportation and fire damage. Any insurance taken out at the Customer's request for the purpose of storing or shipping the products to be delivered shall be borne by the Customer.
§ 6 Retention of title
(1) The following agreed retention of title shall apply to secure all existing current and future claims of MOBOTIX against the Customer arising from the contractual relationship(s) existing between the contracting parties, including balance claims from a current account relationship limited to this supply relationship (hereinafter "Secured Claims").
(2) The products delivered by MOBOTIX to the Customer (for the purposes of this Section 6 hereinafter "Retained Goods") shall remain the property of MOBOTIX until all Secured Claims have been paid in full.
(3) The Customer shall store the reserved goods free of charge for MOBOTIX.
(4) The Customer shall be entitled to process and sell the goods subject to retention of title in the ordinary course of business until the realization event occurs; reference is made to the following paragraph (6). Pledges and transfers by way of security of secured claims are not permitted.
(5) If the reserved goods are processed by the Customer, if the Customer transforms them or combines them with other items, the processing is carried out in the name and for the account of MOBOTIX as the manufacturer. MOBOTIX acquires ownership or - if the processing is carried out using materials from several owners or the value of the processed item is higher than the value of the reserved goods - co-ownership (fractional ownership) of the newly created item in the ratio of the value of the reserved goods to the value of the newly created item. In the event that no such acquisition of ownership should occur for MOBOTIX for legal reasons, the Customer hereby transfers its future ownership or - in the above-mentioned ratio - co-ownership of the newly created item to MOBOTIX as security. The Customer shall store the new item for MOBOTIX with the due care of a prudent businessman. The item created through processing, transformation or combination is deemed to be reserved goods.
(6) In the event of the resale or rental of the reserved goods, the Customer hereby assigns to MOBOTIX by way of security the resulting claim against its Customer - in the case of co-ownership by MOBOTIX of the reserved goods in proportion to the co-ownership share - without the need for any subsequent special declarations. The same applies to other claims that take the place of the reserved goods or otherwise arise with regard to the reserved goods, such as insurance claims or claims in tort in the event of loss or destruction. MOBOTIX hereby accepts this assignment. Furthermore, MOBOTIX revocably authorizes the Customer to collect the claims assigned to MOBOTIX in its own name for the account of MOBOTIX in the event that the Customer does not properly meet its contractual obligations to MOBOTIX. However, the assignment shall only apply to the amount corresponding to the value invoiced by MOBOTIX for the processed, transformed or combined goods subject to retention of title. The portion of the claim assigned to MOBOTIX shall take precedence over the remaining claim.
(7) If third parties seize the reserved goods, in particular by attachment, the Customer shall immediately inform them of MOBOTIX's ownership and inform MOBOTIX of this to enable MOBOTIX to enforce its ownership rights. If third parties are not in a position to reimburse MOBOTIX for the judicial or extrajudicial costs incurred in this connection, the Customer shall be liable for these.
(8) If the realizable value of the securities exceeds the claims to which MOBOTIX is entitled against the Customer by more than ten (10) percent, MOBOTIX shall release securities of its choice at the Customer's request.
(9) If MOBOTIX withdraws from the contract in the event of breach of contract by the Customer - in particular default of payment - (enforcement event), MOBOTIX is entitled to demand the return of the reserved goods.
§ 7 Warranty
(1) The warranty period for the products is twelve (12) months from the transfer of risk. § Section 9 (10) sentence 2 shall apply accordingly.
(2) The products must be carefully inspected immediately after delivery to the Customer or to the third party designated by the Customer, insofar as this is feasible in the ordinary course of business. They shall be deemed approved if MOBOTIX has not received a written notice of defects with regard to obvious defects or other defects that were recognizable during an immediate, proper inspection within ten (10) calendar days after delivery of the products, or otherwise within ten (10) calendar days after discovery of the defect or the time at which the defect was recognizable to the Customer during normal use of the products without closer inspection. If possible, defects should be documented in pictures. MOBOTIX does not waive the objection that the complaint was not timely, factually unfounded or otherwise insufficient by negotiating any notices of defects. Otherwise, §§ 377 et seq. HGB APPLY. At the request of MOBOTIX, the product complained about must be returned to the location communicated by MOBOTIX to the Customer, whereby the product must be provided with an RMA number (return number), which must be communicated to the Customer in advance by MOBOTIX. If it is a warranty case, the costs of the return shipment shall be reimbursed by MOBOTIX. In accordance with the limited warranty provisions at the time of purchase, MOBOTIX will repair a product that does not comply with the contractually agreed quality within the warranty period (subject to country-specific rights).
(3) Obvious transport-related damage or other defects already recognizable upon delivery must also be confirmed by the deliverer with a signature on the respective freight document upon acceptance of the delivery. The Customer must ensure that a corresponding confirmation is provided.
(4) In the event of material defects in the product complained about, MOBOTIX shall initially be obliged and entitled to rectify the defect or make a replacement delivery at its discretion within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement delivery, the Customer may withdraw from the contract or reduce the price appropriately. The place of subsequent performance is the place to which MOBOTIX has delivered as agreed. If the costs of subsequent performance are increased by the fact that the Customer has moved the goods to a location other than the location to which MOBOTIX has delivered, the resulting costs shall be borne by the Customer.
(5) If a defect is due to the fault of MOBOTIX, the Customer may claim damages under the conditions set out in § 9 of these GTC.
(6) The warranty claim shall lapse if the Customer modifies, repairs or maintains the products or individual components without the written consent of MOBOTIX or has these measures carried out by third parties and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the Customer shall bear any additional costs incurred in remedying the defect as a result of the modification.
(7) The warranty on the part of MOBOTIX for the products supplied by MOBOTIX is expressly limited to the scope described in this § 7. Promises (in particular guarantees) made by the Customer to third parties with regard to the products and which lead to warranty claims by third parties that go beyond the scope specified in this § 7 require the prior written consent of MOBOTIX and must otherwise be refrained from. The Customer undertakes to indemnify MOBOTIX immediately against any claims asserted by third parties against MOBOTIX on the basis of warranty claims (including guarantee claims) promised by the Customer and exceeding the scope of this warranty.
§ 8 Property rights
(1) Each contracting party shall remain the owner of the industrial property rights (already) granted to it or registered by it at the time the contract comes into force or during the term of the contract, including any copyrights in question.
(2) Each contracting party shall immediately notify the other contracting party in writing if claims are asserted against it due to the infringement of industrial property rights or copyrights of third parties (hereinafter referred to as "third-party rights").
(3) In the event that the products infringe a third-party right, MOBOTIX shall, at its discretion and expense, (i) modify or replace the products in such a way that third-party rights are no longer infringed, but the products continue to fulfill the contractually agreed functions, or (ii) procure the right of use for the Customer by concluding a license agreement. If MOBOTIX does not succeed in doing so within a reasonable period of time, the Customer is entitled to withdraw from or terminate the contract or to reduce the price appropriately. § Section 9 of these GTC shall remain unaffected by this.
(4) MOBOTIX undertakes to defend the Customer at its own expense in relation to all lawsuits and other proceedings initiated against it, insofar as these are based on the infringement of a third-party right for which MOBOTIX is responsible. Furthermore, MOBOTIX undertakes to reimburse all necessary and reasonable costs incurred by the Customer as a result, provided that the Customer has notified MOBOTIX
- immediately in writing of the action or other proceedings;
- provides all information necessary and requested for the defense; and
- exclusive control over the defense.
(5) If the product contains computer programs that are subject to the so-called "General Public License" (GPL) or another copyleft agreement (LGPL, BSD, etc.), the Customer shall receive a copy of the license together with the product. The content of this license applies in addition to the provisions of these GTC, in particular for the rights to and use of the GPL software, with the exception of the provisions on liability and warranty regulated in the license agreement. With regard to such programs, MOBOTIX is prepared to make the executable programs and the source code available to the Customer upon request to MOBOTIX in accordance with the copyleft licenses for three (3) years from the date of delivery of the program (or the processor-controlled product). For this purpose, the Customer must provide the serial number of the product.
(6) MOBOTIX is not obliged to keep the programs contained in the software of a product up to date, maintain them, service them or make new versions (updates) available free of charge. The Customer undertakes to strictly observe the type assignment of update and product.
(7) The Customer is obliged to indemnify MOBOTIX immediately against all claims, damages, costs (including extrajudicial and judicial costs for the purpose of legal prosecution and defense) and other expenses incurred by MOBOTIX arising from and in connection with the custom-made product commissioned by the Customer and produced according to its specifications in accordance with § 10 paragraph (4) of these GTC and any infringement of third-party rights caused thereby, in particular from and in connection with claims of the owner of the infringed third-party right.
§ 9 Liability for damages due to fault
(1) The liability of MOBOTIX for damages or reimbursement of expenses, regardless of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and tort, is limited in accordance with this § 9, insofar as fault is involved in each case.
(2) MOBOTIX shall not be liable in the event of force majeure or other unforeseeable events within the meaning of the above Section 4 (4) to (6) of these GTC. A limitation of liability pursuant to paragraph (1) above shall not apply
(a) in cases of intentional or grossly negligent breach of duty by MOBOTIX, its organs, legal representatives, employees and other vicarious agents;
(b) in cases of breach of material contractual obligations. Material contractual obligations are those obligations whose fulfillment is essential for the proper execution of the contract and on whose fulfillment the Customer has relied and may also regularly rely;
(c) in the event of injury to life, limb and health also by legal representatives or vicarious agents;
(d) insofar as MOBOTIX has assumed a guarantee for the quality of the goods or the existence of a performance result or a procurement risk;
(e) in the event of liability in accordance with the provisions of the Product Liability Act or other mandatory statutory liability provisions.
(3) Insofar as MOBOTIX or its vicarious agents are only guilty of slight negligence and no case of the above § 9 paragraph (2), lit. (a), (c), (d) and (e) exists, MOBOTIX shall also be liable in the event of a breach of material contractual obligations limited to the amount of damages foreseeable and typical for the contract at the time of conclusion of the contract.
(4) MOBOTIX's liability is limited to a maximum liability amount of EUR 5,000,000.00 for each individual case of damage. This does not apply if MOBOTIX is guilty of malice, intent or gross negligence, for claims due to injury to life, limb or health or in the case of a claim based on a tortious act or an expressly assumed guarantee or the assumption of a procurement risk in accordance with § 276 BGB or in cases of legally binding higher liability amounts.
(5) Any further liability is excluded.
(6) The exclusions or limitations of liability in accordance with § 9 paragraph (1) to paragraph (7) apply to the same extent in favor of the executive and non-executive employees and other vicarious agents of MOBOTIX and its subcontractors.
(7) A reversal of the burden of proof is not associated with the above paragraphs of this § 9.
(8) In the event of loss of data, MOBOTIX shall only be liable for the expenditure required to restore the data, provided that the Customer has carried out a proper data backup immediately before the measure leading to the loss of data.
(9) Insofar as MOBOTIX provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by MOBOTIX, this is done free of charge and to the exclusion of any liability.
(10) Claims for damages due to defects to which the Customer is entitled in accordance with this § 9 shall become statute-barred upon expiry of the limitation period applicable to the warranty claims for defects in accordance with § 7 paragraph (1) of these GTC. This shall not apply if MOBOTIX is guilty of malice, intent or gross negligence and in the cases pursuant to the above § 9 paragraph (2) (a) - (e). The limitation periods under Sections 438 (1) No. 2, 445b (1) and 634a (1) No. 2 BGB remain unaffected.
§ 10 Provision of services and subcontracting
(1) MOBOTIX shall provide its services at its own discretion and in accordance with any existing manufacturer's specifications and recommendations through its bodies, employees or subcontractors (hereinafter "service providers"). MOBOTIX may replace the service providers in whole or in part.
(2) MOBOTIX shall generally provide its services at the registered office of its responsible branch. If necessary, the contracting parties shall reach an agreement on the provision of services at the Customer's premises or at the premises of a third party designated by the Customer.
(3) All services shall be provided by suitably qualified personnel with appropriate care and expertise.
(4) In the case of custom-made products ordered by the Customer, the Customer is obliged to pay one third (1/3) of the costs agreed for the production of the custom-made product to MOBOTIX as an advance payment in accordance with Section 2 (1) sentences 3 and 4 and (3) of these GTC at the time of acceptance of the offer by MOBOTIX. Any special tools, molds, etc. procured by MOBOTIX for the production of the custom-made product shall remain the property of MOBOTIX, even if they have been (partially) charged to the Customer.
(5) The Customer is solely responsible for compliance with the applicable statutory safety regulations when using or operating the products. In particular, the Customer must ensure compliance with the regulations for the operation of terminal devices on the ISDN and set up appropriate overvoltage protection before commissioning. MOBOTIX accepts no liability for incorrect use or operation for which the Customer is responsible or for non-compliance with the relevant and applicable provisions.
§ 11 Contractual conditions for "Professional Services"
(1) The "Professional Services" are exclusively subject to products and services purchased from MOBOTIX as described in the order confirmation. The technical data, specifications, explanations of the functions and possible uses as well as other information in the product descriptions and user documentation supplied are to be understood exclusively as a description of the quality within the meaning of Section 434 (1) sentence 1 BGB and not as an independent guarantee, quality or durability guarantee.
(2) MOBOTIX shall only provide services during its normal business hours on behalf of the Customer to this Customer or for the benefit of the end Customer without establishing a contractual relationship with the end Customer; these are Monday to Friday 8:00 a.m. to 6:00 p.m. ("service hours"), excluding national holidays. If the Customer requests the provision of services outside the service hours ("extended service hours"), MOBOTIX shall use its best endeavors to comply with this request. MOBOTIX may demand separate remuneration for services rendered outside of the service period in accordance with a corresponding written agreement; this also applies to services that are not covered by the flat-rate maintenance fee..
(3) MOBOTIX shall provide maintenance and configuration services exclusively at the locations listed in the order confirmation. The Customer shall notify MOBOTIX immediately of the relocation of a contractual device to a location. At the Customer's request, MOBOTIX shall offer to connect the Customer to the remote diagnosis and maintenance facilities. The costs of the technical equipment required for the installation shall be borne by the Customer. The provision of remote diagnosis and maintenance itself shall be carried out in accordance with the provisions of this contract.
(4) MOBOTIX shall provide configuration services in accordance with the scope specified in the order confirmation. Proper execution shall be recorded in the acceptance report. The Customer is obliged to accept the services immediately; if the Customer does not accept the services by returning the signed acceptance report within seven (7) days, acceptance shall be deemed to have been granted. The Customer undertakes to authorize the end Customer to make a legally effective acceptance vis-à-vis MOBOTIX.
(5) MOBOTIX shall not assume any warranty for subsequent changes to the configuration/installation and any damage caused thereby. However, this does not apply if the Customer can prove that the defective setting was already present at the time of acceptance.
(6) The Customer is responsible for regularly backing up his data. In the event of data loss for which MOBOTIX is responsible, its liability shall therefore be limited to the costs that would have been incurred if the Customer had properly backed up the data.
§ 12 Confidentiality
(1) The contracting parties are obliged to maintain the strictest confidentiality with regard to all information that comes to their knowledge or is disclosed to the other contracting party before and during the term of the contract (the "confidentiality obligation"). Neither party shall disclose such information (either directly or indirectly) to a third party or use it for its own or third party purposes. The contracting parties shall use the confidential information exclusively for the purpose of implementing and executing the contractual relationship in accordance with the contract.
(2) The confidentiality obligation shall apply in particular and without limitation to all trade and business secrets of the respective other contracting party. It also includes all other information relating to the present, past or future business of the contracting party, products, sources of supply and materials, operating and other costs, data, lists of current customers, price lists and data with regard to the pricing of products and services of the respective contracting party and which are contained in the manuals, specifications, memoranda, forms, plans, documentation, drawings and drafts, designs, specifications, data, sources of supply, computer programs and documents and which have been designated as confidential information or trade or business secrets by the respective disclosing contracting party or which are recognizably classified as such by the receiving contracting party. or trade or business secrets or are recognizably classified as such by the receiving Party or there is an obvious interest in maintaining their secrecy (hereinafter "Confidential Information").
(3) The contracting parties shall oblige their personnel who process or come into contact with the confidential information to maintain confidentiality in the same way. The disclosure of confidential information by a contracting party to third parties requires the express and prior consent in writing or text form of the other contracting party.
(4) The above confidentiality obligation does not apply if the respective confidential information can be proven to be confidential:
(a) is state of the art accessible to the general public or this information becomes state of the art without any action on the part of the contracting party or
(b) was already known to the contractual partner or is disclosed by a third party authorized to disclose it or
(c) is developed by the contracting party without the intervention of the other contracting party and without utilizing other information or knowledge obtained through the contractual contact, or
(d) must be disclosed due to mandatory statutory provisions or court or official orders.
(5) Any statutory obligation and any obligation of a contracting party expressly agreed in these GTC and in a contract concluded between the contracting parties to maintain the confidentiality of trade and business secrets and confidential information, in particular the duty of confidentiality, shall expressly continue to exist even after termination of the corresponding contract.
(6) Any breach of the confidentiality obligation shall constitute a material breach of the contract.
§ 13 Export control
(1) The Customer acknowledges and confirms that the products (including the software contained therein) are subject to the export control laws of the Federal Republic of Germany and that the re-export of the products may be subject to authorization under the foreign trade laws of the Federal Republic of Germany or the country in which the Customer has taken delivery of the products.
(2) In this respect, it is the sole responsibility of the Customer to inform itself about the applicable regulations of the country of export and to apply for or obtain any official and/or other permits that may be required for the export of the products and to strictly observe the export regulations and embargoes applicable to the goods, in particular those of the European Union (EU), Germany or other EU member states and, if applicable, the USA or Asian or Arab countries and all third countries concerned. In addition, the Customer is obliged to inform the recipients of the products exported by him in the same way about export control and to oblige them to comply with the applicable export control laws and other regulations regarding export control. The Customer represents and warrants that it will implement appropriate policies and procedures to ensure compliance with the foregoing provisions.
(3) As part of MOBOTIX's policy to ensure compliance with these export control laws and other export control regulations, including embargoes and sanctions, as well as the laws and regulations of those countries in which MOBOTIX sells products, technologies and/or software, the Customer undertakes to verify and ensure, and to provide MOBOTIX with evidence upon request, that
(a) the goods provided are not intended for use in armaments, nuclear technology or weapons technology;
(b) no companies and persons named in the US Denied Persons List (DPL) are supplied with US origin goods, US software and US technology;
(c) no companies or persons named in the US Warning List, US Entity List or US Specially Designated Nationals List are supplied with products of US origin without the relevant authorization;
(d) no companies and persons are supplied that are named in the list of Specially Designated Terrorists, Foreign Terrorist Organizations, Specially Designated Global Terrorists or the EU terrorist list or other relevant negative lists for export controls;
(e) no recipients are supplied who are in breach of other export control regulations, in particular those of the EU or ASEAN states;
(f) all early warning notices issued by the competent German or national authorities of the respective country of origin of the delivery are observed;
(g) not to use, export or re-export, sell, resell, convert or otherwise transfer or make available any products, including components or parts thereof, for activities that are intended for the development, production, use or stockpiling of nuclear-related activities of any kind, chemical or biological weapons or missiles, drones or microprocessors, or that may be used for military purposes or terrorist activities.
(4) Access to and use of goods delivered by MOBOTIX may only take place if the above-mentioned checks and safeguards have been carried out by the Customer; otherwise the Customer must refrain from the intended export and MOBOTIX is not obliged to perform.
(5) The Customer undertakes, when passing on the goods supplied by MOBOTIX to third parties, to oblige these third parties in the same way as in § 13 paragraph (1) to paragraph (4) and to inform them of the need to comply with such legal provisions.
(6) In the case of agreed delivery outside the Federal Republic of Germany, the Customer shall ensure at its own expense that all national import regulations of the country are fulfilled with regard to the goods to be delivered by MOBOTIX, unless MOBOTIX has expressly assumed this obligation.
(7) The Customer shall indemnify MOBOTIX against all damages and expenses resulting from the culpable breach of the above obligations pursuant to Section 13 (1) to (6).
(8) The Federal Office of Economics and Export Control (BAFA), Frankfurter Straße 29-35, 65760 Eschborn, Germany, shall issue information and/or licenses with regard to the export of the products from the Federal Republic of Germany.
§ 14 Data protection
MOBOTIX will store and process the Customer-related data provided by the Customer within the scope of the business relationship for the purpose of implementing pre-contractual measures or fulfilling a contractual obligation, Art. 6 para. 1 lit. c) of the EU General Data Protection Regulation.
§ 15 Place of jurisdiction
The exclusive place of jurisdiction for all disputes between MOBOTIX and the Customer arising from and in connection with these GTC is, at MOBOTIX's discretion, either the ordinary court with jurisdiction for Kaiserslautern/Federal Republic of Germany (local or regional court) or a court of arbitration in accordance with the following provisions. In the event of a passive lawsuit, i.e. an assertion of claims by the Customer against MOBOTIX, MOBOTIX is obliged to inform the Customer of the choice of the competent court (ordinary jurisdiction or arbitration court) in writing at any time upon first request, but in any case before the Customer takes legal action. In the event that the arbitration tribunal is chosen, the disputes shall be finally settled in accordance with the Rules of Arbitration of the International Chamber of Commerce (ICC). The arbitration tribunal shall consist of three arbitrators, whereby one arbitrator shall be appointed by each party and the two arbitrators appointed by the parties shall then jointly appoint a chairman as the third arbitrator. An arbitration award may be declared enforceable by the competent state court at the request of one of the parties. There is no right of appeal against the award of the arbitral tribunal. The award shall also contain a decision on the costs of the proceedings, including the remuneration of the arbitrators. The place and location of the arbitration shall be Kaiserslautern, Federal Republic of Germany. The arbitration proceedings shall be conducted in German.
§ 16 Applicable law
The business relationship between MOBOTIX and the Customer shall be governed exclusively by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG) and the conflict of laws provisions of private international law.
§ 17 Written form requirement, assignment
(1) Amendments and supplements to the contract as well as ancillary agreements must be made in writing. This shall not affect the precedence of the individual agreement in accordance with § 305b BGB.
(2) The assignment of rights and/or obligations arising from the contract and/or these GTC is only permitted with the prior written consent of the other contracting party.
