1.1 The General Terms and Conditions (hereinafter referred to as “T&C”) of MVC Mobile VideoCommunication GmbH (hereinafter referred to as “MVC”) shall apply to all future contracts, offers, deliveries and other services of MVC. Deviating or supplementary terms and conditions regarding the contracting party of MVC (hereinafter referred to as “Customer”) shall not apply, even without the express objection of MVC. They shall only be binding if confirmed in writing by MVC. 1.2. In the event of contradictions between the provisions of these T&C and the contract and its directories or ancillary agreements, the conditions of the contract and its directories or additional agreements shall take precedence.
2. Offer and conclusion of contract
2.1 Price, performance and date specifications as well as other declarations or assurances shall only be binding for MVC if they have been submitted or confirmed by MVC to the Customer in writing. 2.2 Orders placed by the Customer shall not be deemed to have been accepted by MVC until confirmed in writing. If there is no written confirmation, the order shall only be deemed accepted upon delivery of the goods. 2.3 We reserve the right to technical and design deviations from descriptions and information in brochures, catalogues and written documents as well as model, construction and material changes in the course of technical progress which are reasonable for the Customer. It will not be possible to derive any rights against MVC from this.
3.1 All prices are consider off the shelf from Frankfurt am Main or – in case of direct shipment – from the German border or German port of entry. 3.2 All prices are given in Euro, unless otherwise stated, and do not include VAT. This will be invoiced separately at the respective valid rate in accordance with the respective applicable tax regulations. 3.3. The agreed prices apply only to the individually-concluded contract. 3.4 The deduction of a cash discount requires a special written agreement.
4. Delivery, partial delivery, delivery time, delay
4.1 Unless otherwise stated in the order confirmation or the contract, delivery “ex works” is agreed. 4.2 The Customer is obliged to accept partial performance unless this is unreasonable for him in individual cases. 4.3 Delivery dates and periods specified by MVC are non-binding unless expressly agreed otherwise in writing. 4.4 Delivery periods shall be set from the date of MVC’s order confirmation but not before all technical details of the execution have been clarified. 4.5 Events of force majeure and circumstances exceeding the scope of MVC’s responsibilities, which make performance temporarily impossible or otherwise impede it, such as for example strikes, lockouts, mobilisation, war, war-like conditions, blockades, import and export bans, traffic blocks, official measures, energy shortages, shortages of raw materials, etc. shall extend the delivery periods accordingly. If MVC cannot reasonably be expected to perform the contract due to force majeure or circumstances exceeding the scope of MVC’s responsibilities, MVC may rescind the contract in whole or in part. The extension of delivery periods and the right to withdraw from the contract shall apply irrespective of whether the events referred to in sentences 1 and 2 occur on the side of MVC or of MVC’s suppliers: this shall not constitute claims for damages on the part of the Customer. 4.6 Compliance with MVC’s obligation to deliver shall in any case be subject to the timely and proper fulfilment of the Customer’s obligations. 4.7 If the Customer is in default of acceptance or violates any other rights of cooperation, MVC shall be entitled to claim damages, including any additional expenses, incurred by MVC. 4.8 Cancellation of services: a) Cancellation of commissioned services can be made free of charge up to 72 hours before the agreed date. b) Cancellations made later than 72 hours before the agreed date will be charged at 50% of the agreed daily flat rate, but at least 250€ net. c) Irrespective of this, the travel expenses or cancellation costs incurred will be invoiced. 4.9 Surcharges: Separate prices apply for services outside our normal working hours: Monday to Friday from 5:00 pm to 8:00 am: 50% surcharge; Saturday and Sunday: 100% surcharge; Bank holidays: 150% surcharge
5. Transfer of risk, dispatch
5.1 The risk of accidental loss or accidental deterioration of the goods shall pass to the Customer as soon as MVC has made the goods available and notified the Customer thereof or handed over the goods to the person performing the transport. 5.2 Shipment shall be at the Customer’s risk, whereby MVC shall be free to choose the transport route and the means of transport. The goods shall only be insured against damage in transit at the express request and expense of the Customer. 5.3 If the Customer is in default of acceptance or violates other rights of cooperation, the risk of accidental loss or accidental deterioration of the goods shall pass to the Customer at the time at which the Customer is in default of acceptance.
6. Payment, retention, offsetting
6.1 Unless otherwise agreed, payment of the remuneration shall be made upon delivery/service provision. Insofar as MVC agrees to payment by cheque or bill of exchange, cheques and bills of exchange shall only be submitted subject to clearance every time. The submission does not lead to a deferral of the claim by MVC. The costs associated with the utilisation of a cheque or bill of exchange shall be borne by the Customer. If payment is made using means of payment which the Customer has obtained by discounting an acceptor’s bill of exchange, the claim shall only expire upon redemption of the bill of exchange by the Customer. 6.2 If several claims against the Customer are outstanding and a payment by the Customer is not sufficient to settle all claims, settlement shall be effected in accordance with the statutory provisions (§ 366 Paragraph 2 of the German Civil Code), even if the Customer has expressly paid for a specific claim. 6.3 The Customer’s default in payment does not require a reminder from MVC. If the Customer is in default of payment, MVC shall be entitled to demand statutory default interest. MVC reserves the right to validate additional damages caused by default and other statutory rights. 6.4 If, after conclusion of the contract, circumstances become known which, according to dutiful commercial judgement, are suitable to significantly reduce the creditworthiness of the Customer – in particular cessation of payments by the Customer, protest of a bill of exchange or cheque, sustained distraints or other enforcement measures against the Customer or application for the opening of composition or insolvency proceedings – MVC’s total claim shall become due immediately. Notwithstanding any further statutory rights, MVC shall be entitled to refuse any outstanding deliveries until payment for the outstanding deliveries has been made or security has been provided. MVC shall be entitled to withdraw from the contract after a reasonable grace period for the payment of the remuneration or the security has elapsed to no avail. 6.5 The Customer’s right of retention, unless it is based on the same contractual relationship, is excluded. MVC shall be entitled to prevent the exercise of the right of retention by providing security – also by means of surety. 6.6 The Customer may only offset undisputed or legally established claims.
7. Retention of ownership
7.1. MVC retains ownership of the delivered goods until all claims against the Customer to which it is entitled have been paid in full, even if the individual goods have been paid for. Goods that fall under MVC’s (co-)ownership are hereinafter referred to as reserved goods. 7.2. The Customer is obliged to treat the reserved goods with care; in particular, he is obliged to insure them sufficiently at replacement value against fire damage, water damage and theft at his own expense. If maintenance and inspection work is necessary, the Customer must carry this out in good time at his own expense. 7.3 In the event of third parties gaining access to the reserved goods, in particular in the event of distraints, as well as in the event of any other legal or actual damage to or endangerment of the reserved goods or the other securities existing for MVC, the Customer shall draw attention to MVC’s ownership and inform MVC immediately in writing. Costs which become necessary in connection with the resistance to and revocation of the access or the damage or endangerment shall be borne by the Customer insofar as they cannot be collected from third parties. 7.4. The Customer is entitled to resell the reserved goods in the ordinary course of business; however, the Customer hereby assigns to MVC all claims in the amount of the final invoice amount agreed with MVC (including value added tax) accruing to him from the resale to his Customers or third parties, irrespective of whether the object of sale has been resold without or after processing. The Customer remains entitled to collect this claim even after the assignment. MVC’s authority to collect the claim itself shall remain unaffected by this. However, MVC undertakes not to collect the claim as long as the Customer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, has not filed an application for the opening of bankruptcy or composition proceedings and has not suspended payments. If this is the case, however, MVC may require the Customer to disclose the assigned claim and its debtor to MVC and to provide all information necessary for collection, to hand over the relevant documents, and to notify the debtor (third party) of the assignment. 7.5. The processing or transformation of the reserved goods by the Customer shall always be carried out for MVC. The Customer’s expectant right to the reserved goods shall continue in respect of the transformed item. If the reserved goods are processed with other objects not belonging to MVC, MVC shall acquire co-ownership of the new object in the ratio of the objective value of its reserved goods to the other processed objects at the time of processing. In all other respects, the same shall apply to the object resulting from the processing as to the reserved goods. 7.6. If the reserved goods are inseparably mixed with other objects not belonging to MVC, MVC shall acquire co-ownership of the new object in the ratio of the objective value of its reserved goods to the other mixed objects at the time of mixing. If the mixing takes place in such a way that the Customer’s item is to be regarded as the main item, it shall be deemed agreed that the Customer shall assign co-ownership to MVC on a pro rata basis. The Customer shall keep the sole ownership or co-ownership thus created in safe custody for MVC. 7.7. In order to secure MVC’s claim against the Customer, the Customer shall also assign to MVC any claims against a third party arising from the connection of the reserved goods with a piece of land. 7.8. MVC undertakes to release the sureties to which it is entitled at the Customer’s request to the extent that the realisable value of its sureties exceeds the claims to be secured by more than 10% or the nominal amount by more than 50%; the choice of the sureties to be released shall lie with MVC. 7.9. In the event of the Customer acting in breach of contract, in particular in the event of default in payment, MVC shall be entitled to recall the reserved goods. The recalling of the reserved goods by MVC shall not constitute a withdrawal from the contract, unless MVC has expressly declared this in writing. Seizure of the reserved goods by MVC shall always constitute withdrawal from the contract. After taking back the reserved goods, MVC shall be entitled to sell them; the proceeds of such sale shall be set off against the Customer’s liabilities minus reasonable selling costs.
8. Material defect warranty
8.1. If the purchase is a commercial transaction for both parties, the Customer shall inspect the goods immediately upon receipt, insofar as this is feasible in the ordinary course of business, and, if a defect becomes apparent, notify MVC immediately. If the Customer fails to submit such a notification, the goods shall be deemed to have been accepted unless the defect was not identifiable during the inspection. Otherwise §§ 377 et seq. of the German Commercial Code (“HGB”) shall apply. 8.2 The provision in Clause 8.1 shall also apply if goods other than those contractually agreed or a quantity of goods other than those contractually agreed are delivered, unless the delivered goods obviously deviate so substantially from the Customer’s order that MVC must consider approval of the goods to be excluded. 8.3 If operating or maintenance instructions are not followed, changes are made to the products, parts are replaced, or consumables are used which do not correspond to the original specifications, no warranty shall apply unless the warranty case is not attributable to the aforementioned reasons for exclusion. 8.4 If MVC is responsible for a defect in the goods, MVC shall be entitled, at its option, to subsequent performance in the form of remedy of the defect or replacement delivery. In the event that the defect is remedied, MVC shall be obliged to bear all expenses necessary for the purpose of remedying the defect, in particular transport, travel, labour, and material costs, provided that these are not increased by the fact that the object of sale was taken to a place other than the place of performance. 8.5 If the subsequent performance fails, the Customer shall be entitled, at his option, to declare the withdrawal or to demand a corresponding reduction of the purchase price. 8.6 Unless otherwise stated below (Sections 8.7 and 8.8), further claims of the Customer – irrespective of the legal basis – are excluded. MVC shall therefore not be liable for damage which has not occurred to the delivery item itself; in particular, MVC shall not be liable for lost profits or other financial losses of the Customer. 8.7 If MVC culpably violates an essential contractual obligation, liability shall be limited to the damage typical of the contract; otherwise it shall be excluded pursuant to Clause 8.6. An “essential” contractual obligation within the scope of these T&C shall always be deemed to have occurred if MVC culpably breaches such obligations, the proper performance of which the Customer relies on and may rely on because they characterise this contract. 8.8 If the cause of damage is based on intent or gross negligence, MVC shall be liable in accordance with the statutory provisions. This shall also apply if the Customer claims damages instead of performance due to the lack of a guaranteed condition of the goods. 8.9 The warranty period shall be 12 months, calculated from the transfer of risk. For claims according to § 438 Paragraph 1 No. 2 BGB (German Civil Code) and § 634 a Paragraph 1 No. 2 BGB the legal regulation remains.
9. Joint liability
9.1 Any further liability for damages than provided for in Clauses 8.6 to 8.8 shall be excluded – irrespective of the legal nature of the asserted claim. 9.2. The provision pursuant to Clause 9.1 shall not apply to claims under the Product Liability Act. It shall also not apply if MVC is liable for personal injury or damage to health on other legal grounds. 9.3. Unless the limitation of liability pursuant to Clause 8.6 applies to claims arising from the manufacturer’s liability pursuant to § 823 BGB (German Civil Code) due to material damage, MVC’s liability shall be limited to the compensation provided by the insurance company. If this does not occur or does not occur in full, MVC shall be liable up to the amount of the sum insured. 9.4. The provision pursuant to Clause 9.1 shall also not apply in the event of initial incapacity or impossibility for which we are responsible. 9.5. Insofar as MVC’s liability is excluded or limited, this shall also apply to the personal liability of MVC’s employees, workers, staff, representatives and vicarious agents.
10. Property rights, program licence
10.1. The Customer shall notify MVC without undue delay regarding any claims arising from property rights (e.g. trademarks, patent rights, copyrights, design rights and utility model rights) asserted against it by third parties and shall take action in agreement with MVC in the handling of such claims and the prosecution of such rights. If one of these conditions is not fulfilled, MVC shall be released from its liability for such property rights. If an infringement of the property rights of third parties arises for which MVC is liable in accordance with the terms and conditions and if the Customer is therefore prohibited from using the goods in whole or in part by a court of law, MVC shall, at its own expense and at its option, either A: provide the Customer with the right to use the goods or B: design the goods free of property rights or C: replace the goods with another item of corresponding capability which does not infringe any property rights, or D: take back the product concerned against reimbursement of the remuneration. 10.2 If the Customer makes changes to the goods, installs additional equipment or connects the goods to other devices or equipment and if this infringes on the property rights of third parties, MVC’s liability shall lapse. 10.3 Likewise, MVC shall not be liable for the infringement of third party property rights for goods manufactured according to drawings, developments or other information provided by the Customer or for an application unforeseeable by MVC. In this case, the Customer shall indemnify MVC against any claims by third parties. 10.4 The Customer shall not be entitled to any further or other claims due to the infringement of third party property rights. In particular, MVC shall not reimburse consequential damages such as loss of production, loss of use or loss of profit. This limitation of liability shall not apply to the cases of culpable breach of an essential contractual obligation, intent, gross negligence or in the lack of a guaranteed condition regulated in Clauses 9.7 and 9.8. Furthermore, the provisions in Sections 9.2, 9.4, and 9.5 shall also apply here accordingly. 10.5 Programmes and related documentation made available by MVC are intended only for the Customer’s own use under an ordinary, non-transferable licence and exclusively for products supplied by MVC. Copies may only be made – without MVC assuming any costs or liability – for archiving purposes, as replacements, or for troubleshooting purposes. If originals bear a note referring to property rights, this shall also be included in copies by the Customer.
The export of MVC goods to non-EC countries requires the written consent of MVC, irrespective of the fact that the Customer is responsible for obtaining all official import and export permits himself.
12.Commercial use and obligation pursuant to the Electrical and Electronic Equipment Act
12.1 MVC distributes goods that are exclusively commercially usable and that are exclusively intended for commercial use. The Customer undertakes not to sell or otherwise transfer the goods to private households, in particular not to sell or give them away to employees or other private persons. This shall also apply if the Customer ceases to use the goods. 12.2 The Customer shall be obliged to return the delivered goods to MVC after termination of use. MVC undertakes to take back the delivered goods after termination of use by the Customer. The goods are properly disposed of by MVC in accordance with the statutory provisions, in particular the Electrical and Electronic Equipment Act. 12.3 The Customer shall be obligated by contract to the same extent as commercial third parties to whom he transfers the delivered goods and, in particular, to ensure that the goods are returned to him after termination of use so that MVC can dispose of them properly.
13. Written form
All amendments and supplements to contractual agreements must be made in writing. This also applies to the cancellation or amendment of the written form requirement.
14. Place of performance, place of jurisdiction and applicable law
14.1 If the Customer is a merchant, legal entity under public law or special fund under public law, the place of performance for delivery and payment shall be Frankfurt am Main. 14.2 If the Customer is a merchant, a legal entity under public law, or a special fund under public law, Frankfurt am Main shall be the exclusive place of jurisdiction. 14.3 The law of the Federal Republic of Germany shall apply. The Hague Conventions of 1.07.1964 concerning uniform laws on international sales and the provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply.
15. Severability clause
Should individual provisions of these terms and conditions be invalid, this shall not affect the validity of the remaining provisions or the contract itself.