§ 1 General
1. these general terms and conditions apply exclusively. General terms and conditions of the customer shall not apply, unless m2m Germany GmbH ("m2m") has expressly agreed to them.
§ 2 Offer and orders
1. m2m offers are directed exclusively at commercial customers. Private customers are not supplied. The customer must always state his VAT number. If the Customer has not provided m2m with an effective VAT number even after being requested to do so with a reasonable deadline, m2m shall be entitled to withdraw from the contract with immediate effect.
§ 3 Prices
1. all prices quoted are net plus freight, packaging and ancillary costs. The respective valid legal sales tax will be charged additionally.
2. m2m reserves the right to adjust prices accordingly in the event of significant changes in the factors determining the price after conclusion of the contract, if a period of more than 4 months lies between conclusion of the contract and the agreed delivery. This shall also apply if goods are purchased on call and the call is made more than 4 months after conclusion of the contract. Any rights of withdrawal of the customer remain unaffected. m2m shall adjust prices at its own discretion, taking into account the effects of the changed, price-determining factors on m2m's provision costs.
If the goods actually delivered are of higher value than those ordered, m2m shall be entitled to adjust the price at its reasonable discretion. m2m shall notify the Customer of the price increase in writing prior to delivery of the higher value goods. Unless the Customer objects in writing within a period of 7 days, the new price shall be deemed approved. A timely objection shall simultaneously be deemed a withdrawal from the contract. Claims for damages due to non-fulfilment are excluded subject to clause 9 of these GTC.
§ 4 Deliveries and delivery periods
1. m2m shall endeavour to comply with the delivery dates which have been notified as probable. In the event of possible delays in delivery, the Customer shall grant m2m a reasonable grace period of at least 3 weeks. After the unsuccessful expiry of the grace period, the Customer may withdraw from the contract. Compensation for damages due to non-fulfilment shall be excluded even after expiry of the period, unless otherwise provided for in Section 9 of these GTC.
2. partial deliveries are permissible.
3. m2m is entitled to withdraw from the contract if m2m has concluded a congruent covering transaction and the respective supplier fails to deliver in accordance with the contract, without m2m being responsible for this.
4. delivery periods shall be extended - even within a delay - appropriately in the event of force majeure and all unforeseen obstacles occurring after conclusion of the contract, provided that m2m is not responsible for such obstacles and such obstacles can be proven to have a significant influence on the delivery of the goods. This shall also apply if the circumstances occur at m2m's suppliers and their sub-suppliers. m2m shall inform the Customer immediately of the beginning and end of such obstacles. The Customer may demand a declaration from m2m as to whether m2m intends to withdraw from the contract or to deliver within a reasonable period of time. If m2m does not make such a declaration without delay, the Customer may withdraw from the contract. In this case, any services already rendered by the contractual parties shall be reimbursed. Further claims by the Customer are excluded, subject to the provisions of Item 9.
§ 5 Dispatch
1. if the goods are shipped to the Customer at the Customer's request, the risk of accidental loss or deterioration of the goods shall pass to the Customer upon dispatch of the goods to the Customer, but no later than upon leaving the business premises of m2m This also applies if freight or packaging-free delivery has been agreed upon. The transport of all shipments - including any returns - shall be exclusively at the risk of the Customer.
§ 6 Industrial property rights / confidentiality
1. the customer receives the goods for use as agreed without any further transfer of industrial property rights The customer shall refrain from registering industrial property rights embodied in the goods for himself or for third parties or from appropriating them in any other way or from claiming ownership of the rights vis-à-vis third parties.
2. for a period of five years after conclusion of the contract, the Customer shall maintain absolute secrecy, treat all technical and economic information from or in connection with the goods, which were either marked as confidential by m2m or whose confidentiality results from the circumstances and which the Customer has obtained in connection with this delivery of goods, as confidential and not to grant unauthorized third parties access to such information.
3. the confidentiality obligation shall not apply to confidential information,
- (a) which were or become publicly known without any breach of this confidentiality obligation by the customer
- (b) which the customer has developed independently of the confidential information
- (c) which are to be surrendered by the Customer on the basis of a legal obligation or enforceable order of a competent court or authority, whereby in the event of an order, the Customer shall inform m2m of the obligation immediately upon becoming aware of it and shall give m2m the opportunity to defend or reduce the disclosure obligation and provide unrestricted support in doing so, and
- (d) which the customer has received from a third party without breach of any confidentiality obligation vis-à-vis the related party. The confidentiality obligation shall apply without time limitation with regard to any source codes contained in the Goods.
§ 7 Payment
1. m2m invoices are to be paid immediately, strictly net, without deduction of postage and other expenses, unless otherwise agreed. In the case of agreed partial delivery from an order, the invoice amount is due for payment after the invoice is issued in accordance with these GTC. Payments shall be made exclusively to the accounts specified by m2m. Cheques are only accepted on account of performance under reservation of encashment. Retention of title and extended retention of title pursuant to Section 8 of these GTC shall continue to apply until the cheque amount is irrevocably credited to m2m.
2. m2m shall be entitled to charge interest on arrears at a rate of 9 percentage points above the respective base interest rate p.a. in the event of default. The right to assert higher damages caused by default is reserved.
3) The Customer may only offset claims of m2m against counterclaims of m2m in the case of undisputed or legally established counterclaims. This shall not affect m2m's claims against the Customer for interest on maturity. This also applies to any rights of retention of the Customer against m2m. m2m is always entitled to assert rights of retention.
§ 8 Retention of title
1. m2m reserves the right of ownership of the goods until full payment of all claims arising from the delivery of goods. The Customer is entitled to sell the goods to third parties in the ordinary course of business. The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The Customer shall notify m2m immediately in writing if and insofar as third parties gain access to the goods belonging to m2m.
2) In the event of resale, the Customer hereby assigns to m2m, in the first instance, its claims against third parties arising from the sale of the reserved goods in the amount of the invoice price of the resold goods. m2m accepts the assignment. The Customer shall be entitled - until revoked - to collect the claim for m2m. The Customer shall be obligated to keep payments received from third parties separate up to the amount of the invoice price, and to transfer them to m2m immediately upon receipt.
3. if the Customer processes the delivered goods within the framework of newly manufactured products, it is agreed that m2m shall acquire co-ownership of the new object in the ratio that corresponds to the value of the delivered goods to the value of the newly manufactured product The Customer shall store the object free of charge for m2m. m2m shall be entitled to demand the granting of direct ownership or co-ownership of the newly created product at any time. If the Customer sells the newly created product co-owned by m2m to a third party, the Customer assigns his payment claim against the third party to m2m with the placement of the order, proportionally to the amount of his obligation to m2m. m2m is entitled to notify the respective third party of the assignment.
The Customer shall handle goods that are (co-)owned by m2m with care, protect them from harmful effects, not remove or damage m2m's property markings, and insure them against fire, water, theft and vandalism, as well as electricity damage at replacement value.
§ 9 Warranty
1. all products supplied by m2m are manufactured by third parties The performance data of the products is provided by m2m from the manufacturers. Within the scope of customary trade practice, these technical specifications are to be considered approximate and do not represent guaranteed properties. Deviations of the delivered goods from the offer documents are permissible, provided that they are due to technical reasons and do not represent a significant deviation from the contractually agreed condition.
2. m2m's consent must be obtained before any goods are returned. If the goods are returned without proper packaging, the Customer shall bear the risk of damage.
3. the customer has to examine the goods immediately after arrival. Complaints regarding quantity and type as well as complaints regarding goods with externally recognizable defects are excluded if they are not reported in writing to m2m immediately, i.e. within 5 days of receipt of the goods at the latest. This shall also apply with respect to other defects which the Customer has not notified m2m in writing immediately after discovery. Before installing the delivered goods in devices or other objects, the Customer shall inspect the goods for defects.
4. in the event of justified complaints, the Customer shall be entitled to rectification of defects or replacement delivery, at m2m's discretion. If this is not possible within a reasonable period of time, fails, is unreasonable, or if m2m has expressly refused to do so, the Customer shall have the right to demand a reduction of the remuneration or to withdraw from the contract.
5. claims of the Customer against m2m due to expenses incurred by the Customer for the purpose of subsequent performance, in particular transport, travel, labour and material costs, shall be excluded, insofar as these expenses are increased due to the fact that the delivered goods were subsequently taken to a place other than the place of performance, unless the transfer corresponds to their intended use. The Customer shall reimburse m2m for all expenses incurred by m2m within the scope of subsequent performance due to the transfer of the goods to a place other than the place of performance.
6. m2m shall not be liable for defects resulting from changes to the goods, improper use or storage or other circumstances for which m2m is not responsible.
§ 10 Liability clause
1. m2m shall only be liable for claims for damages in the event of gross negligence and intent on the part of m2m, its legal representatives or vicarious agents. This limitation of liability shall not apply to:
- (a) the violation of essential contractual obligations (obligations whose fulfilment is essential for the proper execution of the contract and on whose compliance the Contractual Partner regularly relies and may rely); in these cases, m2m's liability shall be limited to the foreseeable damage typical for the contract, in addition to a maximum amount of € 1,000,000 (liability insurance sum) in the case of damage to property
- (b) a liability according to the product liability law,
- (c) Damages resulting from injury to life, body or health,
- (d) liability for fraudulent intent; and
- (e) the provision of a strict guarantee.
2. the Customer may only withdraw or terminate due to a breach of duty that does not consist of a defect, if m2m is responsible for the breach of duty. The Customer's free right of termination (in particular pursuant to §§ 651, 649 BGB) is excluded.
§ 11 Limitation period
1 In deviation from §438 Paragraph 1 No. 3 of the German Civil Code (BGB), the general limitation period for claims of the Customer against m2m arising from material defects and defects of title is one year from delivery. However, if the goods are goods that have been used for a building in accordance with their usual purpose and have caused its defectiveness (building material), the limitation period shall be 5 years from delivery. Special statutory provisions for in rem restitution claims of third parties (§438 para. 1 no. 1 BGB), for fraudulent intent of m2m (§438 para. 3 BGB) and for claims in supplier recourse in the case of final delivery to a consumer (§479 BGB) shall also remain unaffected.
2. the above limitation periods shall also apply to contractual and non-contractual claims for damages of the customer which are based on a defect of the goods, unless the application of the regular statutory limitation period (§§195, 199 BGB) would lead to a shorter limitation period in individual cases. The limitation periods of the Product Liability Act shall remain unaffected in any case.
§ 12 Place of performance and jurisdiction
The place of performance for delivery and payment is Wehrheim im Taunus. The place of jurisdiction for all disputes arising in connection with the contractual relationship shall be Frankfurt am Main, provided the customer is a merchant. The law of the Federal Republic of Germany shall apply exclusively.
Germany. The application of uniform sales law, in particular the application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded.
§ 13 Additional conditions for re-export
1. the delivered goods are subject to German and - if they were manufactured in the USA - American export controls and embargo regulations A re-export from the EU is only permitted with the approval of the Federal Office of Economics and Export Control. Furthermore, all products of US manufacturers require special approval from the competent US authorities for export from the EU. Information on this can be obtained from the trade departments of the US consulates and the Federal Office of Economics and Export Control. The customer is responsible for compliance with the relevant regulations up to the end user.