MOBOTIX AG General Terms and Conditions for the Purchase of Products and Services
Date: September 13, 2016
1. Validity of Terms and Conditions
1.1 The General Terms and Conditions of Business of MOBOTIX AG, Kaiserstrasse, 67722 Langmeil (hereinafter referred to as "MOBOTIX") shall apply exclusively to the purchase of products and services expressly agreed with the seller/contracting partner (hereinafter referred to as "Supplier") when placing an order. Deviations from the General Terms and Conditions of Business of MOBOTIX shall apply only if they have been expressly approved in writing by MOBOTIX.
1.2 Any contradictory terms and conditions, terms and conditions deviating from the MOBOTIX General Terms and Conditions of Business for the Purchase of Products and Services or terms and conditions of the Supplier altering the contract are hereby rejected; they shall only take effect to MOBOTIX if MOBOTIX agrees to these amendments in writing. In particular, this shall apply in the event that the Supplier's offer or acceptance of the order (order confirmation) is done with reference to its General Terms and Conditions or Business or Sale.
1.3 The MOBOTIX General Terms and Conditions of Purchase shall also form the basis for all future transactions between MOBOTIX and the Supplier.
2. Scope of deliveries or services
2.1 The order and acceptance of the order (order confirmation) shall be carried out exclusively by means of physical declarations in text form (including fax or email). The respective agreement is concluded with the content of the order made by MOBOTIX, subject to MOBOTIX's right to make changes to the order (delivery time, order size, etc.) if the Supplier allows this. The Supplier can only effectively oppose the order concerned by stating specific reasons within five (5) working days of receiving the order.
2.2 If the order confirmation differs from the order placed, MOBOTIX shall only be committed to the order if they have approved the deviation in text form.
2.3 Any amendments or additions to the order shall only be effective when they are confirmed by MOBOTIX in text form. MOBOTIX shall not be bound by oral collateral agreements.
2.4 MOBOTIX shall reserve all intellectual property rights and copyrights on cost proposals, drafts and other documentation without limitation; they may only be made available to third parties after express advance written approval from MOBOTIX. They shall be used exclusively for production relating to the order; after the order has been processed or if the agreement is not concluded, they shall be returned unsolicited to MOBOTIX.
2.5 The Supplier shall only be entitled to outsource the order or individual parts thereof to independent third parties with the express advance written approval of MOBOTIX.
2.6 All material delivered to MOBOTIX AG must comply with the rules of EU-guideline 2011/65/EU (RoHS 2) and REACH and be free of conflict minerals (§1502 DFA).
3. Orders, price
The price shown in the order is binding. Unless otherwise agreed in writing, the order shall be delivered to the dispatch address given in the order free of charge, including packaging and insurance. Statutory VAT and customs duties shall be included in the price and shown separately. The delivery notes for each delivery shall be copied in triplicate. All shipping documents and delivery notes must indicate the contents of the consignment and include the MOBOTIX order number.
4. Retention of title by MOBOTIX
4.1 When the Supplier provides parts to MOBOTIX, this shall be carried out subject to retention of title. Any processing or remodeling carried out by the Supplier shall be done for MOBOTIX. If the goods supplied under reservation of title are processed or remodeled with other items that do not belong to MOBOTIX, MOBOTIX shall acquire co-ownership of the new item in the ratio of the value of the goods supplied under reservation of title to the other items at the time they are processed or remodeled.
4.2 If the items ordered by MOBOTIX are inseparably mixed with other items that do not belong to MOBOTIX, MOBOTIX shall acquire co-ownership of the new item in the ratio of the value of the goods supplied under reservation of title to the other mixed items at the time they are mixed. If the items are mixed in such a way that the item of the Supplier is to be regarded as the main item, the Supplier shall transfer co-ownership to MOBOTIX on a pro rata basis; the Supplier shall grant MOBOTIX either sole or co-ownership.
4.3 In event of access by a third party to the property held by MOBOTIX, the Supplier is obliged to point out the MOBOTIX property and inform MOBOTIX without delay. All costs incurred by MOBOTIX in connection with defending against this access shall be reimbursed by the Supplier.
5. Reservation of title of the Supplier
5.1 The Supplier is obliged to notify MOBOTIX in writing before delivery if products are being delivered subject to reservation of title.
5.2 In the event that retention of title is properly notified, the following shall apply:
Before the transfer of ownership, the Supplier shall allow MOBOTIX to have at their disposal the delivered products in the ordinary course of business. If the products received by MOBOTIX are combined with other items to create a single product before the transfer of ownership and the other product is considered to be the main item, MOBOTIX is obliged to transfer co-ownership in the new product to the Supplier on a pro rata basis to the extent that the main item belongs to the Supplier.
If MOBOTIX sells the delivered products on in accordance with their intended use, MOBOTIX shall hereby assign the receivables against the purchaser arising from the sale to the Supplier, along with all ancillary rights, until the receivables have been paid in full. The Supplier shall release collateral held by it to the extent that the value of such collateral exceeds 10% of the secured receivables.
6. Payment terms
6.1 Unless otherwise agreed, payments shall be made within 30 (thirty) days strictly net or within 14 (fourteen) days with a 3 (three) % discount. The timeliness of the payment shall be measured from the time the payment order is initiated by MOBOTIX. The payment period shall begin as soon as the delivery or service has been rendered and the properly issued invoice, which must satisfy the requirements of Sections 14, 14a of the German Turnover Tax Act (UStG), has been received by MOBOTIX indicating the order number shown in the order. A discount may also be deducted if MOBOTIX offsets against claims or withholds payments in reasonable amounts due to defects; the payment period shall begin after the defect has been completely remedied.
6.2 MOBOTIX shall retain rights of offset and retention to the extent provided by law.
7. Deadline for deliveries or services
7.1 The timeliness of deliveries depends on the delivery being received at the point of receipt or use given by MOBOTIX within the agreed delivery period; the timeliness of services depends on their being accepted by MOBOTIX within the agreed service period.
7.2 The Supplier is obliged to inform MOBOTIX immediately in writing of circumstances arising or becoming known to it from which it is evident that the delivery date requested cannot be met. Operational disruptions, failures of suppliers (to the Supplier), lack of energy or raw materials, traffic disruptions, to the extent that such outcomes were not foreseeable or avoidable, as well as strikes, lockouts, official decrees and cases of force majeure shall release the affected party from its obligation to deliver goods or render services for the duration of the disruption and to the extent of their effects. If the delivery or services are delayed by these disruptions for more than one (1) month, each party is entitled to withdraw from the contract in relation to the quantities affected by the delivery or service disruption to the exclusion of all other claims. This shall not apply to liability for intentional or gross negligence.
7.3 In the event of non-compliance for reasons for which the Supplier bears the risk, MOBOTIX may assert a lump-sum compensation payment of 1% (one percent) of the value of the delivery for every full week of the delay. The compensation payment shall be limited to 5% (five percent) of the value of the order. The Supplier shall be entitled to prove that no damage or less damage has been incurred as a result of the delay in delivery.
7.4 MOBOTIX reserves the right to assert further damages, provided that they can prove that a greater amount of damage has been incurred as a result of the delay for which the Supplier is responsible. In this case, a lump-sum compensation payment effected in accordance with Clause 3 shall be credited.
7.5 MOBOTIX's right to withdraw from the contract after the ineffectual expiry of a suitable grace period granted to the Supplier or to demand damages for breach of contract shall remain unaffected.
7.6 If MOBOTIX is in default of acceptance, the Supplier shall be entitled to demand reimbursement of the additional expenses incurred for the underlying order, but no more than the purchase price amount agreed in the underlying contract. MOBOTIX shall be entitled to prove to the Supplier that no damage or less damage has been incurred as a result of the delay in delivery.
8. Transfer of risk
8.1 In the case of services, risk shall be transferred upon acceptance, and in the case of deliveries upon receipt at the point of receipt or use given by MOBOTIX. The Supplier is obliged to enter the order number for MOBOTIX precisely on all shipping documents and delivery notes; should it fail to do this, MOBOTIX shall not be responsible for any delays in processing.
8.2 If the delivery is delayed at the request of MOBOTIX, or if MOBOTIX is in default of acceptance, the Supplier is obliged, at the request and expense of MOBOTIX, to arrange the insurance cover required.
Items delivered shall only be accepted by MOBOTIX if they do not display any defects.
10. Warranty and cancellation
10.1 The Supplier is obliged to carry out quality assurance measures and quality control. At MOBOTIX, incoming goods inspection is limited to a comparison of incoming deliveries with the order based on the delivery note, the indicated quantity, the markings on the packaging and a visual inspection of the goods.
10.2 The goods must incorporate state-of-the-art technology and any additional quality agreements reached. The Supplier shall be responsible for ensuring that all of the applicable import and export control regulations under German and foreign law in connection with the delivery are complied with. If there is reasonable cause, the Supplier shall submit a certificate of origin at the request of MOBOTIX.
10.3 MOBOTIX shall be entitled to all legal claims under warranty in full; notwithstanding this entitlement, MOBOTIX shall also be entitled to demand supplementary performance in the form of rectification or the delivery of a new item, broader claims to reduction or withdrawal, compensation for damages including compensation in place of services and the reimbursement of wasted expenses. MOBOTIX shall be entitled to remedy the defect itself at the Supplier's expense in the event of imminent danger or if there is particular urgency. Any warranty claims held by MOBOTIX shall lapse in 3 (three) years. The period of limitation shall begin at the end of the year in which the products were delivered to MX.
10.4 In the event of a purchase of rights, the Supplier shall assume strict liability.
10.5 To the extent that the Supplier grants a seller's and/or manufacturer's warranty without prejudice to the aforementioned claims, the details are to be taken from the terms of the warranty, which are enclosed with the respective goods delivered.
10.6 If the Supplier fails to meet the warranty claim made by MOBOTIX within a suitable period, usually 14 (fourteen) days, MOBOTIX shall be entitled, for every day by which the commencement of the discharge of the warranty claim is delayed, to assert a claim for lump-sum compensation payment, without prejudice to the provisions in Section 7 Clause 3. The same shall apply if the defect rectification is delayed because the Supplier negligently interrupted the rectification. The compensation payment shall be limited to 5% (five percent) of the value of the order. The Supplier shall be entitled to prove that no damage or less damage has been incurred as a result of the delay in delivery.
10.7 In the event of successive delivery agreements, MOBOTIX may withdraw from the order as a whole if at least two (2) deliveries have been entirely or partially defective. In the case of a continuing obligation with the recurring provision of goods or services, MOBOTIX shall be entitled to terminate this obligation with notice of one week without giving reasons, unless otherwise agreed. MOBOTIX shall be entitled to terminate a contract with immediate effect at any time until the contract has been completed.
11. Liability – Exemption – Third-party liability insurance
11.1 If the Supplier is responsible for damage to a product, it is obliged to indemnify MOBOTIX against claims asserted by third parties when first asked to do so. As part of its liability for events of damage within the meaning of Sentence 1, the Supplier is also obliged to reimburse any expenses incurred from or in connection with a recall carried out by MOBOTIX. This shall not affect any other legal claims.
11.2 The Supplier is obliged to generally maintain product liability insurance with coverage of EUR 5.0 million (five million euros) per personal injury or material damage. Any additional contractual and/or legal claims for compensation held by MOBOTIX shall remain unaffected.
12. MOBOTIX limitation of liability
12.1 MOBOTIX shall only be liable for damage incurred by the Supplier if there is intent or gross negligence on the part of MOBOTIX. This shall not apply to liability for damages resulting in loss of life, bodily injury or loss of health. MOBOTIX shall also be liable to the extent of typically foreseeable damages in cases where MOBOTIX or their vicarious agents have caused such damages in violation of a fundamental contractual obligation.
12.2 Liability on the part of MOBOTIX for indirect damages and consequential loss is excluded.
12.3 This limitation of liability shall apply with respect to all damage compensation claims, irrespective of their legal basis, and particularly with respect to precontractual and collateral contractual claims. The limitation of liability does not limit any compulsory legal liability.
12.4 Any other damage compensation claims of the Supplier made as a result of a defective delivery must be asserted in court within one year of the claim arising. This shall not apply to liability for damages resulting in loss of life, bodily injury or loss of health.
13. Assignment of claim
Assignments of claim are only permitted with the written approval of MOBOTIX.
14. Intellectual property rights, indemnification and confidentiality
14.1 Should the commercial protection rights (patent rights, trademark rights, copyrights, rights to use or registered design rights, database protection rights or other protection rights) of the Supplier cover the goods delivered and/or services rendered, the Supplier shall grant MOBOTIX temporarily, geographically and substantively unlimited rights of use.
14.2 It is the responsibility of the Supplier to ensure that no third-party protection rights are violated by the delivery of its goods to MOBOTIX and their utilization, and/or the rendering of its services, either in Germany or abroad. The Supplier shall indemnify MOBOTIX and their customers against all claims asserted by third parties due to the violation of such protection rights in text form on first demand. This indemnification also includes the costs of any potential legal dispute, including the actual fees, costs and outlay which arise from such a dispute. In the event of any legal dispute, whether in court or out of court, the Supplier is obliged to immediately support MOBOTIX to the best of its abilities at its own expense. MOBOTIX alone shall decide whether a legal dispute should be brought before a court or a settlement reached. If a claim asserted against MOBOTIX is settled, the Supplier may only raise the objection that a more favorable result could have been achieved for MOBOTIX with a judicial decision or by continuing the proceedings if MOBOTIX has accepted, regulated or reached a settlement on an obviously unfounded claim.
14.3 MOBOTIX and the Supplier shall mutually notify each other immediately if third parties assert any claims for breaches of protection rights relating to goods delivered or services rendered.
14.4 The Supplier is obliged to treat all MOBOTIX orders and associated commercial and technical details as confidential. This shall also apply to pictures, drawings, calculations, etc. that the Supplier receives in connection with MOBOTIX orders. The Supplier shall impose the same confidentiality agreement upon its agents or vicarious agents. Confidential information may only be made available to third parties after the express advance approval of MOBOTIX. The confidentiality obligation shall also apply for three (3) years from the expiration of the agreement.
15. Occupational safety, Accident prevention and security; Product or process alterations
15.1 The Supplier is obliged to comply with relevant legal provisions and rules regarding occupational safety, accident prevention, transport and systems security (as well as MOBOTIX's own general and site-specific regulations) and maintain an effective management system in the areas mentioned and to make the corresponding proof available to MOBOTIX upon request or grant MOBOTIX inspection rights.
15.2 Suppliers who maintain regular business relationships with MOBOTIX are required to inform MOBOTIX at an early stage if they intend to alter products or processes with regard to products or services obtained by MOBOTIX.
16. Legal succession, conversion
16.1 Insofar as MOBOTIX undergoes a reorganization through a change in their legal form that preserves their legal identity or through a change in their legal personality due to a merger, split-up or transfer of assets in accordance with the provisions of the German Reorganization Act (Umwandlungsgesetz), the contract concluded between MOBOTIX and the Supplier, together with all rights and duties pertaining hereto, shall be continued with the newly formed or acquiring legal successor.
16.2 In the event that a change in the Supplier's legal form that preserves its legal identity or through a change in its legal personality due to a merger, split-up or transfer of assets in accordance with the provisions of the German Reorganization Act takes place, MOBOTIX has an exceptional right of termination.
16.3 MOBOTIX shall be entitled to transfer contracts concluded between MOBOTIX and the Supplier to a company affiliated with MOBOTIX within the meaning of Section 15 of the German Stock Corporation Act (AktG), together with all of the rights and duties pertaining thereto.
17. Place of jurisdiction, Applicable law, Place of performance
17.1 Unless mandatory statutory provisions provide otherwise, the place of jurisdiction for all disputes arising between the Supplier and MOBOTIX shall be Kaiserslautern or the Supplier's location, chosen at MOBOTIX's discretion; the courts at Kaiserslautern shall have sole jurisdiction over any lawsuits filed against MOBOTIX.
17.2 The laws of the Federal Republic of Germany shall exclusively apply to this contractual relationship to the exclusion of the UN Sales Convention of 04/11/1980 as currently amended (CISG - United Nations Convention on Contracts for the International Sale of Goods). In the case of cross-border transactions, the 2010 Incoterms of the International Chamber of Commerce in Paris shall additionally apply, as well as the Uniform Customs and Practice for Commercial Documentary Credits (UCP) as currently amended. This shall also apply if the Supplier's company headquarters is located abroad.
17.3 The place of performance is Kaiserslautern unless otherwise stipulated in the order.
18. Binding nature of the contract
18.1 Should any individual provisions in these General Terms and Conditions be or become invalid in whole or in part for any reason, then these invalid provisions shall be replaced by valid provisions which come closest to the economic intent of the invalid provision.
18.2 In case of doubt, the invalid provisions shall be replaced by the applicable legal provisions given by the law of the Federal Republic of Germany and the corresponding regulations in the 2010 Incoterms.
The Supplier takes note that MOBOTIX retains and processes data, including personal data, from the contractual relationship for data processing purposes in accordance with Section 28 of the German Federal Data Protection Act (BDSG).