§ 1 General
1. these GTC shall apply exclusively. The customer's general terms and conditions shall not apply unless m2m Germany GmbH ("m2m") has expressly agreed to them.
§ 2 Offer and orders
1. m2m's offers are exclusively directed at commercial customers. Private customers are not supplied. The customer shall always provide its VAT number. If the customer has not provided m2m with an effective VAT number even after being requested to do so within a reasonable period of time, 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 statutory sales tax applicable at the time will be charged additionally.
2. m2m reserves the right to adjust prices accordingly in case of significant changes in the factors determining the price after the conclusion of the contract, if there is a period of more than 4 months between the conclusion of the contract and the agreed delivery. This also applies if goods are purchased on call and the call takes place more than 4 months after the conclusion of the contract. Any rights of withdrawal of the customer remain unaffected. The price adjustment shall be made by m2m in its due discretion, taking into account the effects of the changed, price-forming factors on m2m's cost price.
3. if the goods actually delivered are of a higher value than those ordered, m2m shall be entitled to adjust the price at its reasonable discretion. m2m shall notify the customer in writing of the price increase prior to delivery of the higher value goods. If the customer does not object in writing within a period of 7 days, the new price shall be deemed to be accepted. An objection within this period shall simultaneously be considered as a withdrawal from the contract. Claims for damages due to non-performance are excluded subject to clause 9 of these GTC.
§ 4 Deliveries and delivery periods
1. m2m shall endeavor to meet the delivery dates communicated as probable. In case of possible delays in delivery, the customer shall grant m2m a reasonable grace period of at least 3 weeks. After unsuccessful expiry of the grace period, the customer may withdraw from the contract. Compensation for damages due to non-fulfillment shall be excluded even after the expiration of the grace period, unless otherwise stipulated in clause 9 of these GTC.
2. partial deliveries are permissible.
3. m2m shall be entitled to withdraw from the contract if m2m has concluded a congruent covering transaction and the respective supplier does not deliver according to the contract without m2m being responsible for this.
4. delivery periods shall be reasonably extended - also within a delay - in case of force majeure and all unforeseen obstacles occurring after conclusion of the contract, provided that m2m is not responsible for them 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. Beginning and end of such obstacles shall be communicated by m2m to the customer immediately. The customer may request m2m to declare whether m2m intends to withdraw from the contract or to deliver within a reasonable period of time. If m2m does not declare its intention without delay, the customer may withdraw from the contract. In this case, any services already rendered by the contracting parties shall be reimbursed. Further claims of the customer are excluded subject to the provisions of clause 9.
§ 5 Shipping
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, at the latest, however, upon leaving m2m's business premises. This shall also apply 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
The customer shall receive 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 itself or 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 the conclusion of the contract, the customer shall maintain absolute secrecy with regard to all technical and commercial information arising from or in connection with the goods, which either has been marked as confidential by m2m or the confidentiality of which results from the circumstances and of which the customer has gained knowledge in connection with this delivery of goods, shall treat such information as confidential and shall not grant unauthorized third parties access thereto.
3. the confidentiality obligation does not apply to confidential information,
- (a) which were or become publicly known without a breach of this confidentiality obligation by Customer,
- (b) that Customer has developed independently of the Confidential Information,
- (c) which are to be disclosed by the customer on the basis of a legal obligation or enforceable order of a competent court or authority, whereby in the case of an order the customer shall inform m2m of the obligation immediately after becoming aware of it and shall give m2m the opportunity to defend against or reduce the disclosure obligation and shall provide full assistance in doing so; and
- (d) which the Customer has received from a third party without breaching a confidentiality obligation towards the Purchased Party. The confidentiality obligation shall apply indefinitely with respect to any source codes contained in the goods.
§ 7 Payment
1. m2m's invoices shall be paid immediately net without deduction of postage and other expenses, unless otherwise agreed. In case of agreed partial delivery from an order, the invoice amount is due for payment after issuing the invoice according to these GTC. Payments shall be made exclusively to the accounts specified by m2m. Cheques shall only be accepted on account of performance, subject to the right of encashment. Retentions of title and extended retentions of title according to clause 8 of these GTC shall continue to apply until the amount of the check has been irrevocably credited to m2m.
2. m2m shall be entitled to charge interest on arrears in the amount of 9 percentage points above the respective base interest rate per annum. m2m reserves the right to claim higher damages caused by default.
3. offsetting against claims of m2m by the customer is only permitted with undisputed or legally binding counterclaims. Claims of m2m against the customer for due date interest shall remain unaffected. This shall also apply with regard to any rights of retention of the customer against m2m. m2m shall always be entitled to assert rights of retention.
§ 8 Retention of title
1. m2m shall retain title to the goods until all claims arising from the delivery of goods have been paid in full. 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 inform m2m immediately in writing if and to the extent that third parties have access to the goods belonging to m2m.
2. in the event of resale, the customer hereby assigns to m2m its claims against third parties arising from the sale of the goods subject to retention of title 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 on behalf of m2m. He shall be obliged to keep payments received from third parties up to the amount of the invoice price separately and to transfer them to m2m immediately after receipt.
3. if the customer processes the delivered goods within the scope of newly manufactured products, it is agreed that m2m shall acquire co-ownership of the new product in the ratio which corresponds to the value of the delivered goods to the value of the newly manufactured product. The customer shall store the item free of charge for m2m. m2m shall be entitled at any time to demand the granting of direct possession or co-ownership of the newly created product. If the customer sells the newly created product, which is co-owned by m2m, to a third party, the customer shall, upon placing the order with m2m, assign its claim for payment against the third party proportionately to the amount of its obligation towards m2m on a first priority basis. m2m shall be entitled to notify the respective third party of the assignment.
4. the customer shall handle the goods owned or co-owned by m2m with care, shall protect them from harmful effects, shall not remove or damage m2m's property markings and shall 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 are provided by the manufacturers. Within the scope of commercial practice, these technical specifications are to be regarded as approximate and do not constitute guaranteed characteristics. Deviations of the delivered goods from the quotation documents are permissible as far as 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 prior to any return of the goods. In case of return without proper packaging, the customer shall bear the risk of damage.
The customer shall inspect the goods immediately upon receipt. Complaints regarding quantity and type as well as complaints regarding goods with externally visible defects are excluded if they are not reported to m2m in writing immediately, i.e. within 5 days after receipt of the goods at the latest. This shall also apply to other defects, which the customer has not notified m2m of in writing immediately after their discovery. Prior to the installation of the delivered goods in equipment or other items, the customer shall inspect the goods to ensure that they are free of defects.
4. in case of justified complaints, the customer shall be entitled to rectification or replacement at m2m's discretion. If this is not possible within a reasonable period of time, if it fails, if it is unreasonable or if m2m has explicitly 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 for expenses incurred by the customer for the purpose of subsequent performance, in particular transport, travel, labor and material costs, shall be excluded, insofar as these expenses increase due to the fact that the delivered goods have been subsequently transported to a place other than the place of performance, unless such transport is in accordance with their intended use. The customer shall reimburse m2m for all expenses incurred by m2m in the course of subsequent performance due to the goods having been taken to a place other than the place of performance.
6. the warranty shall not apply if the defect is due to modification of 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 case of gross negligence and intent of m2m, its legal representatives or vicarious agents. This limitation of liability does not apply to:
- (a) the breach of essential contractual obligations (obligation, the fulfilment of which is a prerequisite for the proper execution of the contract and the observance of which the contractual partner regularly relies on and may rely on); in these cases m2m's liability shall be limited to the foreseeable damage typical for the contract, in case of damage to property additionally to a maximum amount of € 1.000.000,- (liability insurance sum),
- (b) liability under the Product Liability Act,
- (c) damages resulting from injury to life, body or health,
- (d) a liability due to fraudulent intent as well as
- (e) the assumption of a no-fault guarantee.
2. due to a breach of duty that does not consist of a defect, the customer may only withdraw or terminate if m2m is responsible for the breach of duty. The customer's free right of termination (in particular according to §§ 651, 649 BGB) is excluded.
§ 11 Limitation
1. deviating from §438 para. 1 no. 3 BGB (German Civil Code), the general limitation period for claims of the customer against m2m arising from material defects and defects of title shall be one year from delivery. However, if the goods are used for a building in accordance with their usual use and have caused the defectiveness of the building (building material), the period of limitation shall be 5 years from delivery. This shall also not affect special statutory regulations for claims for surrender in rem by third parties (§438 para. 1 no. 1 BGB), in case of fraudulent intent by m2m (§438 para. 3 BGB) and for claims in supplier recourse in case of final delivery to a consumer (§479 BGB).
2. the above limitation periods shall also apply to contractual and non-contractual claims for damages of the customer 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
Place of performance for delivery and payment is Wehrheim im Taunus. Frankfurt am Main is agreed as the place of jurisdiction for all disputes arising in connection with the contractual relationship, provided that 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 in case of re-export
1. the delivered goods are subject to German and - if manufactured in USA - American export controls and embargo regulations. Re-export from the EU is only permitted with the approval of the Federal Office of Economics and Export Control. In addition, all products from U.S. manufacturers require special approval from the responsible U.S. authority 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.