Terms & Conditions
GENERAL TERMS AND CONDITIONS Of MOBA Mobile Automation AG (MOBA)
I. General provisions
- These General Terms & Conditions and bilateral written declarations are authoritative with regard to the scope of deliveries or services (hereinafter referred to as "deliveries"). The Purchaser's general terms & conditions shall not apply unless MOBA expressly provides written confirmation of their applicability.
- Part deliveries are admissible, provided that the Purchaser can reasona-bly be expected to accept them.
II. Prices and terms of payment
- The prices are ex works MOBA, exclusive of packaging and VAT at the statutory rate which is valid on the date of delivery.
- The Purchaser can only offset claims which have been established as undisputed or are legally binding.
- All prices in the shop are only a non-binding offer. As soon as one of our employees has checked and approved your order, we will send you a written order confirmation.
III. Retention of title
- Until all current and future claims of MOBA, on whatever legal basis, vis-à-vis the Purchaser and/or his group companies have been satisfied in full (including all balances due on current accounts), MOBA shall have the following securities which are to be released upon demand if their value sustainably exceeds the value of claims to be secured by more than 25 %.
- MOBA shall retain title to the goods. The processing or modification of the goods by Purchaser is always performed on behalf of MOBA.
- Purchaser is entitled to process or sell the goods subject to the retention of title within the scope of ordinary business provided that he is not in default of payment However, he is not entitled to pledge the goods or transfer ownership by way of security. The Purchaser hereby assigns as collateral all claims arising from the resale of the goods to which title has been retained or on other legal grounds (insurance, tort), (including all balances due on current accounts) to MOBA. The Purchaser revocably authorises MOBA to collect claims assigned to MOBA for his own ac-count. This collection authorisation may only be revoked if the Purchaser meets his payment obligations.
- If the Purchaser breaches the contract, in particular, in the event of payment delay, MOBA shall be entitled to take the goods back or to de-mand the assignment of the Purchaser's right to recovery from third parties. The recovery or pledging of the goods to which title is retained by MOBA does not constitute cancellation of contract. The Purchaser is under ob-ligation to surrender the goods.
IV. Delivery times; default
- If delivery deadlines have been agreed, compliance with these is subject to the timely receipt of all documents to be provided by the Purchaser, all necessary approvals, particularly of plans, and Purchaser's compliance with the agreed terms of payment and other obligations. If these re-quirements are not met in a timely manner, the deadlines shall be rea-sonably extended, unless MOBA is exclusively responsible for the delay.
- If non-compliance with deadlines is due to force majeure, e.g. mobilisa-tion, war, riot or similar events such as strikes, lock-outs, the deadlines shall be reasonable extended.
- If MOBA defaults, the Purchaser may - subject to credible evidence that damages have been incurred as a result - demand compensation of 0.5 % of the value of deliveries which could not be put into service as a re-sult of the default for each complete week of delay and up to a maximum of 5 % of the value.
- Purchaser claims for damages due to delayed delivery and claims for damages in lieu of performance which exceed the limits specified in 3 are excluded in all cases of delayed delivery, even if the supplier fails to comply with a time limit which is set for delivery. This does not apply in cases of statutory liability for damages resulting from injury to life, limb or health caused by deliberate acts and gross negligence. The Purchaser may only cancel the contract in accordance with statutory provisions if MOBA is exclusively responsible for the delayed delivery. The above provisions are not associated with a change of the onus of proof to the detriment of the Purchaser.
Negligible defects do not justify a refusal of acceptance by the Purchaser.
VI. Material defects
MOBA is liable for material defects as follows:
- All parts or services where a material defect becomes apparent within the limitation period shall, at the discretion of the Supplier, be repaired, re-placed or provided again free of charge irrespective of the hours of op-eration elapsed, provided that the reason for the defect had already ex-isted at the time when the risk passed.
- Purchaser claims in respect of material defects are subject to a limitation period of twelve months. This does not apply in cases of damages result-ing from injury to life, limb or health as a result of the deliberate or negli-gent breach of obligation on the part of MOBA or if MOBA fraudulently conceals a defect. Furthermore, this does not affect the statutory provi-sions on expiry suspension, the suspension and recommencement of the limitation periods.
- The Purchaser shall notify MOBA of defects in writing, without undue delay.
- Initially, MOBA must always be given the opportunity to render subse-quent performance within a reasonable period of time.
- If repeated subsequent performance fails, the Purchaser is entitled to either cancel the contract or demand a reduction in price - without preju-dice to any claims for damages pursuant to section VIII.
- Claims in respect of defects may not be asserted when there are only insignificant deviations from the agreed quality, or only a minor impair-ment of serviceability, or natural wear and tear and damages arising after the passing of the risk as a result of incorrect or negligent handling, ex-cessive strain, unsuitable equipment or external influences not assumed under the contract and non-reproducible software errors. Claims based on defects attributable to improper modifications or repair work carried out by the Purchaser or third parties and the consequences thereof shall be like-wise excluded.
- Purchaser claims for the costs associated with subsequent performance, in particular transport, travelling, work and material costs are excluded unless they are asserted because the item was taken to another of the Supplier's business premises after delivery and the item's transfer there is in conformity with its use for the intended purpose.
- Furthermore, the provisions of section VIII (Other Claims for Damages) shall apply in respect of claims of damages. Any other claims of the Pur-chaser against MOBA or its agents or any such claims for defects ex-ceeding the claims provided for in this section VIII shall be excluded.
VII. Impossibility of performance; adaptation of contract
If it is impossible to make a delivery, the Purchaser shall be entitled to claim damages, unless MOBA is not responsible for the impossibility. The Pur-chaser’s claim for damages shall, however, be limited to an amount of 10 % of the value of the part of the delivered goods which, owing to the impossi-bility, cannot be put to the intended use. This limitation shall not apply in the case of mandatory liability for deliberate acts, gross negligence or injury of life, limb or health; this does not imply a change in the onus of proof to the detriment of the Purchaser. The right of the Purchaser to cancel the contract shall remain unaffected.
VIII. Other claims for damages
- Claims for damages and reimbursement of expenses asserted by the Purchaser (hereinafter referred to as "claims for damages") on whatever legal grounds, particularly claims asserted on grounds of the breach of duty to comply with an obligation or tort, are excluded.
- This does not apply in cases of statutory liability for damages, e.g. under the German Product Liability Act (Produkthaftungsgesetz), in the case of da¬mages resulting from injury to life, limb or health, deliberate acts or gross negligence. Claims for damages as a result of the breach of fun-damental contractual obligations are limited to contract typical and fore-seeable da¬mages, unless caused by deliberate acts or gross negligence or relating to liability for injury to life, limb or health. The above provisions are not associated with a change of the onus of proof to the detriment of the Purchaser.
- To the extent that the Purchaser has a valid claim for damages pursuant to this section VIII, it shall be time-barred upon expiration of the limitation period applicable to material defects as specified in section VIII (2). The statutory provisions governing limitation periods shall apply to claims for damages under the German Product Liability Act.
IX. Place of jurisdiction and governing law
- Sole place of jurisdiction, if the Purchaser is a businessman, for all disputes arising from or in connection with the contract, is MOBA's regis-tered place of business. MOBA is also entitled to institute legal proceed-ings at the court with jurisdiction for the Purchaser's registered place of business.
- Legal relations existing in connection with this contract shall exclusively be governed by German substantive law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
X. Severability clause
The legal invalidity of one or more provisions of this contract shall in no way affect the validity of the remaining provisions. This shall not apply if it would be unreasonable for one of the parties to continue the contract.
General Terms and Conditions of MOBA Mobile Automation AG, 07/2008.
Please note that the English translation is for convenience only. In the event of any conflict or contradiction between the German language version and the English language version, only the German language version shall be legally valid.