MVC Mobile VideoCommunication GmbH
Westerbachstrasse 59
60489 Frankfurt
| Phone: | +49 (69) 633 99-100 |
| Fax: | +49 (69) 633 99-199 |
| Email: | info@mvc.de |
MVC Munich
Dingolfinger Strasse 7
81673 München
| Phone: | +49 (89) 20 00 09-810 |
| Fax: | +49 (89) 20 00 09-815 |
| Email: | muenchen@mvc.de |
MVC Berlin
Friedrichstrasse 200
10117 Berlin
| Phone: | +49 (30) 868 710-469 |
| Fax: | +49 (30) 868 710-466 |
| Email: | berlin@mvc.de |
Terms and conditions
March 2008
| 1. Scope | |
| 1.1 | The general terms and conditions (hereinafter "GTC") of MVC Mobile VideoCommunication GmbH (hereinafter "MVC") are applicable to all - including future - contracts, offers, deliveries and other services of MVC. Deviating or supplementary conditions of MVC's contracting parties (hereinafter "Customers") shall not apply even in the absence of any express objection by MVC. They shall be binding only if confirmed in writing by MVC. |
| 1.2 | In case of contradictions between the provisions of these GTC and the given contract and its schedules or collateral agreements, the conditions of the contract and of its schedules or collateral agreements shall prevail. |
| 2. Offers and conclusion of contracts | |
| 2.1 | Particulars of prices and services and other declarations or representations shall be binding on MVC only if stated, made or confirmed by MVC to the Customer in writing. |
| 2.2 | Customers' orders shall not be deemed to have been accepted by MVC until confirmed in writing. In the absence of written confirmation, an order shall be deemed to have been accepted only upon delivery of the goods. |
| 2.3 | MVC reserves the right to deviate in a manner the Customer can reasonably be expected to accept in terms of engineering or design from descriptions or particulars contained in prospectuses, catalogues or written records and to modify models, designs or materials in the course of technological progress without thereby giving rise to any rights against MVC. |
| 3. Prices | |
| 3.1 | All prices are ex warehouse in Frankfurt/Main or - in case of direct selling - ex German border and/or ex German port of importation. |
| 3.2 | All prices are euro prices unless otherwise indicated and exclusive of VAT. VAT shall be invoiced separately at the applicable rate pursuant to the fiscal provisions in force for the time being. |
| 3.3 | The agreed prices shall only apply to the given contract. |
| 3.4 | Discounts shall be subject to a separate written agreement. |
| 4. Delivery, partial delivery, delivery time and default | |
| 4.1 | Unless differently provided for by the confirmation of the order or by the contract, delivery shall be deemed to have been agreed "ex works". |
| 4.2 | The Customer is obligated to accept partial services unless it cannot reasonably be expected to do so in the given case. |
| 4.3 | Dates and periods of delivery named by MVC are not binding unless expressly agreed differently in writing. |
| 4.4 | Periods of delivery shall begin with the date of the confirmation of the order by MVC, not, however, before all engineering details of execution have been settled. |
| 4.5 | Periods of delivery are appropriately extended by events of force majeure or circumstances for which MVC is not answerable and which temporarily prevent or otherwise obstruct performance such as strike, lock-out, mobilisation, war, war-like conditions, blockade, import or export bans, interruptions of traffic, shortages of energy or raw materials. If MVC cannot be reasonably expected to perform the contract on account of events of force majeure or other circumstances for which MVC is not answerable, the latter may rescind the contract in whole or in part. The right to extend the period of delivery or to rescind the contract shall be irrespective of whether any of the events listed in sentences 1 and 2 affects MVC or any of its suppliers. This does not give rise to any claims for damages by the Customer. |
| 4.6 | Compliance by MVC with its obligation to make delivery shall in any event be contingent on the timely and proper fulfilment of the Customer's obligations. |
| 4.7 | If the Customer is in default of acceptance or infringes other rights of participation, MVC is entitled to compensation for the damage sustained by it including for any additional expenditure incurred. |
| 5. Passing of the risk, forwarding | |
| 5.1 | The risk of accidental destruction or of accidental deterioration of the goods shall pass to the Customer as soon as MVC makes the goods available and advises the Customer that it has done so or as soon as it has delivered them to the forwarding agent. |
| 5.2 | Forwarding is at the Customer's risk with the choice of the transport route and the means of transport being left to MVC. Policies insuring goods against damage in transit shall be taken out only at the Customer's express request and expense. |
| 5.3 | If the Customer is in default of acceptance or infringes other rights of participation, the risk of accidental destruction or accidental deterioration of the goods shall pass to the Customer at the point in time of the beginning of such default. |
| 6. Payment, retention, set-off | |
| 6.1 | Except if agreed differently, goods shall be paid on delivery (COD). If MVC accepts payment by cheque or bill, such cheque or bill shall in any event be considered delivered only by way of performance. Such acceptance does not trigger any deferment of MVC's claim. The cost associated with the realisation of a cheque or bill shall be borne by the Customer. If payment is made by means of payment the Customer has obtained by discounting an acceptor's bill, the claim shall not be discharged until the bill has been cashed by the Customer. |
| 6.2 | If there are several outstanding claims against the Customer and if one payment by the Customer does not suffice to redeem all claims against it, redemption shall be governed by the statutory provisions (Section 366 para. 2 German Civil Code - "BGB") even if the Customer has expressly made payment towards a specific claim. |
| 6.3 | No reminder by MVC is required for the Customer to be in default in payment. If the Customer is in default in payment, MVC is entitled to the statutory default interest. MVC reserves the right to assert more extensive damage caused by default and to invoke additional statutory rights. |
| 6.4 | If, after the conclusion of the contract, circumstances become known - such as in particular cessation of payment by the Customer, protest of a bill or a cheque, sustained attachments or other measures of levy of execution against the Customer, or application for the institution of composition or insolvency proceedings - which are apt, on the basis of a due commercial assessment of the circumstances, to materially diminish the Customer's credit worthiness, the total of MVC's claims shall fall due at once. Without prejudice to further statutory rights, MVC is entitled to refuse to make outstanding deliveries until payment therefore has been made or pertinent collateral security has been furnished. After a reasonable extension granted for such payment or for such collateral security has lapsed to no avail, MVC is entitled to rescind the contract. |
| 6.5 | Any right of retention of the Customer, unless based on the same contractual relationship, is excluded. MVC is entitled to avert exercise of a right of retention by way of security, including guarantee. |
| 6.6 | The Customer may set off only undisputed or non-appealably established claims of its own against those of MVC. |
| 7. Reservation of proprietary rights | |
| 7.1 | MVC reserves the rights of proprietary (right of ownership) in respect of goods delivered by it until all of its claims against the Customer are fully paid, even if payment has been made for the odd merchandise. Goods owned or (co-)owned by MVC are hereinafter referred to as "conditional merchandise". |
| 7.2 | The Customer is obligated to handle conditional merchandise with care and, in particular, to sufficiently insure it at its own expense and at its new value against fire, damage by water and burglary. Where maintenance or inspections are required, the Customer is obligated to perform them on time and at its own expense. |
| 7.3 | In the event of any third-party recourse to conditional merchandise, in particular in case of attachments, and in the event of any other legal or factual impairment or endangerment of conditional merchandise or of any other collateral security furnished to MVC, the Customer shall draw attention to MVC's rights of ownership and shall promptly notify the latter in writing. Any costs associated with warding off or terminating such recourse and/or impairment or endangerment shall be borne by the Customer to the extent that they cannot be recovered from third parties. |
| 7.4 | The Customer is entitled to resell conditional merchandise in the ordinary course of business with the proviso that it assigns already now to MVC all claims accruing to it from such resale against its buyers or third parties at the level of the final invoice amount agreed with MVC (including VAT), regardless of whether the pertinent merchandise was resold before or after processing. The Customer shall remain entitled to collect such claims even after such assignment. MVC's right to collect such claims on its own shall remain unaffected. However, MVC undertakes to refrain from collecting them so long as the Customer meets its payment obligations out of the proceeds of such resale, is not in default in payment and, in particular, so long as no application has been filed for the institution of bankruptcy or composition proceedings against it and has not ceased to make payment. Does the Customer fail to meet these conditions MVC may require the Customer to identify to MVC the claim assigned and the pertinent debtor, to supply all particulars required for its collection, to surrender the pertinent records and to notify the debtor (third party) of the assignment. |
| 7.5 | Where the Customer processes or reshapes conditional merchandise, it always does so on behalf of MVC. The Customer's contingent right to the conditional merchandise shall be preserved in regard to the reshaped object. Where conditional merchandise is processed in combination with other objects not owned by MVC, the latter shall become co-owner of the new object at the ratio between the objective value - at the time of such processing - of the conditional merchandise and that of the other items processed. In all other respects, the object emerging from such processing shall be treated on a par with the conditional merchandise. |
| 7.6 | If conditional merchandise is inseparably mixed with other objects not owned by MVC, the latter shall become co-owner of the new object at the ratio of the objective value - at the time of such mixing - of the conditional merchandise and that of the other admixed items. If the mix produced is such that the Customer's object must be looked upon as the principal item, it shall be deemed agreed that the Customer transfers partial ownership thereof to MVC on a pro rata basis. The Customer shall have custody on MVC's behalf of the emergent solely or jointly owned object. |
| 7.7 | By way of security for MVC's claims against the Customer, the latter shall assign to the former also those claims that accrue against a third party from the combination of conditional merchandise with a piece of real property. |
| 7.8 | MVC undertakes to release, at the Customer's request, the collateral securities owed to MVC to the extent that the realisable value thereof exceeds the claims to be secured by more than 10% or the nominal amount by more than 50%. It is for MVC to decide which securities are to be released. |
| 7.9 | If the Customer acts contrary to contract, in particular if it defaults on payment, MVC is entitled to reclaim the conditional merchandise. By doing so MVC does not rescind the contract except if MVC expressly declares such rescission. Any attachment of the conditional merchandise is always tantamount of the rescission of contract. Following recovery of the conditional merchandise, MVC is entitled to exploit it. The proceeds from such exploitation shall be set off against the Customer's liabilities minus reasonable exploitation charges. |
| 8. Warranty for material defects | |
| 8.1 | If the purchase is a commercial transaction for either party, the Customer shall inspect the merchandise immediately following receipt to the extent practicable in the ordinary course of business and shall, if a defect is discovered, give prompt notice thereof. If the Customer fails to give such notice, the merchandise shall be deemed to be endorsed unless the defect was not discernible on inspection. Otherwise, Sections 377 et seq. HGB Commercial Code shall apply. |
| 8.2 | The provisions of number 8.1 shall also apply if a merchandise or a quantity other than contractually agreed is delivered provided that the merchandise delivered does not obviously deviate from the Customer's order so substantially that MVC cannot be expected to endorse it. |
| 8.3 | Any warranty shall lapse if operating or maintenance instructions are not observed, if changes are made to the products, if parts are exchanged or if consumables are used which do not correspond to the original specifications except if the above reasons for exclusion are not applicable. |
| 8.4 | Where MVC is answerable for a given defect of the merchandise, MVC has the option of subsequent performance either by eliminating the defect or by delivering a substitute. If MVC opts for elimination of the defect, it shall bear all pertinent costs, in particular carriage and transport, labour and materials to the exclusion of any such extra cost as is associated with the removal of the object of purchase to a place other than the place of performance. |
| 8.5 | If subsequent performance fails, the Customer is free to either declare rescission or require the purchase price to be reduced accordingly (price reduction). |
| 8.6 | Except if differently provided for hereinafter (numbers 8.7 and 8.8), more extensive claims of the Customer - regardless of legal ground - are ruled out. MVC is not, therefore, liable for damage not caused to the delivery item proper. In particular, MVC shall not be liable for profit lost or other economic losses sustained by the Customer. |
| 8.7 | If MVC culpably infringes a material contractual obligation, its liability shall be limited to the damage typical of the given type of contract. In all other respects such liability shall be ruled out pursuant to number 8.6. A contractual obligation shall consistently be looked upon as "material" for the purposes of these GTC if it is a distinctive feature of the given contract on whose proper fulfilment the Customer relies and has reason to do so. |
| 8.8 | Where a damage is caused wilfully or by gross negligence, MVC’s liability shall be governed by the applicable statutory provisions. The same shall apply if the Customer opts for the right to demand damages in lieu of performance on account of the absence of a guaranteed quality. |
| 8.9 | The warranty is subject to a limitation period of 12 months calculated from the passing of the risk. This does not effect claims on the basis of section 438 (1) no. 1 and section 634 a (1) no.2 German Civil Code for which statutory limitation period is applicable. |
| 9. Joint and several liability | |
| 9.1 | Any more extensive liability for damages than is provided for in numbers 8.6 to 8.8 is excluded irrespective of the legal nature of the claim asserted. |
| 9.2 | The provision of number 9.1 shall not apply to claims governed by the Product Liability Act. Nor does it apply in cases where MVC is liable for bodily harm or injury to health on other legal grounds. |
| 9.3 | Except where limitation of liability pursuant to number 8.6 is applicable to claims asserted under manufacturer's liability for material damage pursuant to Section 823 BGB (German Civil Code), MVC's liability shall be limited to compensation by the insurance provider. If such compensation is not or not fully applicable, MVC shall be liable up to the amount of insurance cover. |
| 9.4 | Nor does the provision of number 9.1 apply in case of initial inability to perform or answerable impossibility. |
| 9.5 | Where MVC's liability is excluded or limited, the same shall apply to the personal liability of the salaried and other employees, staff members, representatives and vicarious agents of MVC. |
| 10. Industrial property rights, programme license | |
| 10.1 | The Customer shall promptly advise MVC of claims under industrial property rights (for example: trademark and patent rights, copyrights, registered design or utility model rights) asserted against the Customer by third parties and shall proceed with MVC's concurrence in dealing with such claims and asserting the pertinent rights. If one of the above requirements is not satisfied, MVC shall be released from any liability for such industrial property rights. In case of an infringement of third-party industrial property rights for which MVC is liable pursuant to the applicable provisions and if therefore the Customer is non-appealably prohibited from using all or part of the merchandise, MVC shall at its own expense either (i) procure for the Customer the right to use the merchandise, (ii) procure that the merchandise is not subject to industrial property rights, (iii) replace the merchandise by a non-infringing other object of similar capacity or (iv) take the pertinent merchandise back against refund of the remuneration. |
| 10.2 | MVC's liability shall lapse if the Customer alters the merchandise, builds in additional items or combines it with other instruments or devices provided that third-party industrial property rights are thereby infringed. |
| 10.3 | Nor shall MVC be liable for the infringement of external industrial property rights to merchandise produced on the basis of drawings, inventions or other particulars provided by the Customer or for any application not foreseeable by MVC. In this respect the Customer shall release MVC from third-party claims. |
| 10.4 | In the context of infringement of third-party industrial property rights, the Customer is not entitled to any more extensive or other claims. Nor does MVC, in particular, pay compensation for consequential damage such as loss of output, use or profit. This limitation of liability shall not apply to the cases of culpable infringement of a material contractual obligation, of intent or gross negligence or the absence of a guaranteed quality governed by numbers 8.7 and 8.8. Moreover, here, too, the provisions of numbers 9.2, 9.4 and 9.5 shall analogously apply. |
| 10.5 | Programmes provided by MVC and pertinent documentation are intended only for the Customer's own use under a non-exclusive and non-transferable license. They may only be used on products supplied by MVC. Copies may be drawn - without assumption of costs or liability by MVC - only for filing purposes, as substitutes or for fault finding. Where originals are marked as being subject to industrial property rights, the Customer is required to also mark copies thereof accordingly. |
| 11. Export | |
| Any export of MVC merchandise to non-EC states is subject to the written consent of MVC, irrespective of the fact that the procurement of official and export permits is the Customer's own responsibility. | |
| 12. Written form | |
| All modifications of and amendments to contractual agreements shall require the written form. The same shall apply to any rescission or modification of the requirement of writing. | |
| 13. Place of performance, legal venue and applicable law | |
| 13.1 | If the Customer is a businessman, a legal person under public law or a separate fund under public law, Frankfurt/Main shall be the place of performance in respect of delivery and payment. |
| 13.2 | If the Customer is a businessman, a legal person under public law or a separate fund under public law, Frankfurt/Main shall be the exclusive legal venue. |
| 13.3 | The law of the Federal Republic of Germany shall apply. The “Hague Convention of 1 July 1964 Relating to a Uniform Law of the International Sale of Goods and the provisions of the United Nations Convention on Contracts for the International Sale of Goods” are not applicable. |
| 14. Saving clause | |
| Should individual provisions of these terms and conditions be ineffective, the validity of their remaining provisions and of the contract proper shall not be affected thereby. | |