General Terms and Conditions

1. General Terms

1.1 These General Terms and Conditions and Terms of Delivery of MediaMobil Communications GmbH (“MediaMobil”) shall apply to all legal relations with companies in the sense of § 310 of the German Civil Code (BGB) (“client”). Deviating, conflicting and/or supplementary contractual provisions of the client shall only apply if and insofar as MediaMobil has explicitly agreed to them in writing.

1.2 Individual agreements concluded in particular cases (including supplementary agreements, additions and amendments) take precedence over these General Terms and Conditions. For the contents of such agreements a written contract and/or a written confirmation of MediaMobil shall be decisive.

1.3 Even without special clarification the statutory regulations shall supplementarily apply insofar as they are not directly modified or explicitly excluded in these General Terms and Conditions.

1.4 These provisions shall apply as of 01 February 2025 and replace all previous General Terms and Conditions and Terms of Delivery.

2. Conclusion of the Contract

2.1 Offers issued by MediaMobil are non-obligatory and non-binding.

2.2 Technical documentations (f. e. drawings, data sheets, specifications) are not sufficiently decisive for the offer. They shall not constitute an agreement or a guarantee for a property of the goods unless MediaMobil has explicitly warranted it in writing.

2.3 The agreement between MediaMobil and the client is not concluded until MediaMobil has issued a written order confirmation.

3. Prices and Payment Terms

3.1 Remuneration shall be due and payable within 30 days as of invoicing if and insofar as no other agreement was concluded between MediaMobil and the client. After expiry of the payment deadline the client is in default and will receive a written reminder.

3.2 As of the second reminder the client shall automatically have to pay default interest of 8% above the base lending rate.

3.3 A cash discount deduction is not envisaged and is only possible in exceptional cases on the basis of an explicit written agreement and if all past invoices are fully paid.

3.4 The client shall only be entitled to set-off rights or rights of retention to the extent to which the respective counterclaim is established with legal effect or is expressly acknowledged by MediaMobil.

3.5 In the event a pecuniary claim of MediaMobil is threatened due to the client’s insufficient capacity to fulfil his obligations (f. e. application to open insolvency proceedings or if the client fails to fulfil his obligations in the proper form or in due time or if he declares that he does not intend to meet his obligations or if there are still overdue obligations from a previous service transaction) MediaMobil is entitled pursuant to statutory regulations to refuse performance and – where appropriate, after setting a deadline – to withdraw from the contract (§ 321 of the German Civil Code (BGB)) and may immediately declare withdrawal. Statutory regulations on the dispensability of setting a deadline remain unaffected. Furthermore, MediaMobil reserves the right to bring forward the due date for payment with immediate effect and/or to implement deliveries from that moment onwards against advance payment only. If the client has defaulted on an agreed payment or other performance of this or other legal transactions, MediaMobil, notwithstanding its other rights, shall have the right to call in all outstanding receivables from this or other legal transactions with immediate effect. This shall also apply insofar as deferred claims are concerned. Furthermore, once the internal credit limit is exceeded (total of unpaid invoices and open orders/deliveries) or the third reminder level is reached, deliveries are stopped.

3.6 MediaMobil reserves the right to re-determine agreed prices according to equitable discretion with immediate effect (§ 315 of the German Civil Code (BGB)) if there is a significant increase in prices for raw materials and/or energy of more than 5% net since the time the agreement was concluded.

3.7 The costs for packaging and transport stated in MediaMobil’s offers are experience-based, estimated prices. Costs may deviate depending on actual expenses and the tariffs effective at the time of dispatch. The client shall be informed about possible deviations and is obliged to bear the costs that have actually arisen.

4. Delivery Terms

4.1 The order confirmation of MediaMobil shall be decisive for the scope of delivery. To be effective, changes are subject to MediaMobil’s written approval. MediaMobil reserves the right vis-à-vis the client to change the construction, measures and weights of the goods within reasonable limits.

4.2 Unless it conflicts with the client’s interests and insofar as it is deemed acceptable for the client, MediaMobil shall have the right to carry out partial deliveries.

4.3 Agreements on delivery deadlines must be in writing to be effective. Delivery deadlines are non-binding unless MediaMobil has declared them binding in writing.

4.4 The delivery deadline commences upon the conclusion of the agreement. The delivery deadline is deemed met if delivery takes place prior to its expiry or if the client has been informed that the goods are ready for dispatch.

4.5 In the event that MediaMobil is unable to comply with binding delivery deadlines for reasons it is not responsible for (unavailability of the goods and services f. e. because MediaMobil itself did not receive delivery from its suppliers), MediaMobil shall immediately inform the client and will, with a view to circumstances, determine an appropriate new delivery deadline. If the goods and services are still not available within the new delivery deadline, MediaMobil shall be entitled to wholly or partially withdraw from the contract; MediaMobil shall be reimbursed for already provided counter-performances without delay. The statutory rights of MediaMobil (f. e. exclusion of the duty to perform) and the client’s rights from these General Terms and Conditions remain unaffected.

4.6 The beginning of the delivery default is subject to statutory regulations. However, at any rate the client is required to issue a reminder.

4.7 Delivery is carried out ex works Bremen (place of performance) in the dispatch mode most cost-effective for MediaMobil. Extra costs for a mode of dispatch determined by the client shall be payable by the client. MediaMobil invoices packaging costs at cost price.

4.8 Dispatch of the goods is implemented at the client’s risk (destruction, deterioration, delay). If dispatch is delayed for reasons MediaMobil cannot be held responsible for, the risk passes on upon notification that the goods are ready for dispatch. The statutory passing of risk due to default of acceptance remains unaffected.

5. Retention of Title

5.1 Until the price is fully paid the delivered goods remain the property of MediaMobil. If the client is in default with the payment of the price, MediaMobil shall be entitled to have the retention of title entered into the Retention of Title Register at the orderer’s costs.

5.2 In case of resale, the client already now assigns to MediaMobil the receivables from the resale to a third party, including all ancillary rights and with priority over the rest, in the amount of the value MediaMobil has invoiced for the retained goods. Under the reservation of revocation, the client is licensed to collect the receivables assigned in advance.

5.3 The client may only resell the retained goods within the limits of the regular, proper course of business and only under condition that the client himself agrees on a retention of title with his buyer and that the claims from the resale truly pass on to MediaMobil. The client shall not be entitled to otherwise dispose of the retained goods, particularly to pledge or transfer property by way of security. The client shall have to immediately inform MediaMobil about pledges or other interferences of third parties. The client is obliged to refund costs due to interventions. Upon the termination of payment, application or opening of insolvency proceedings or upon the initiation of an out-of-court settlement the right to resell and to collect the assigned claims expires.

5.4 Insofar as MediaMobil, after withdrawal from the agreement, may demand surrender of the retained goods and is entitled pursuant to statutory regulations to demand compensation instead of performance, MediaMobil shall have the right to sell the retained goods by private agreement at the best possible price while safeguarding the interests of the client or MediaMobil may reimburse the client the usual sales value the retained goods have at the time they are taken back. At the client’s request, which may only be made immediately after the retained goods are taken back, and at the client’s option a publicly appointed expert will establish the usual sales value. The client shall bear all expenses of the taking back and utilization of the object of purchase. Without proof utilization costs shall amount to 10% of the usual sales value. They shall be higher or lower if the client provides proof of higher or lower costs.

5.5 As long as the retention of title lasts the client shall have to keep the goods in good condition and must insure them against theft, destruction, fire, water and other risks. The client shall take all measures to ensure that MediaMobil’s property claim is neither impaired nor nullified.

6. Passing of Risk and of Utilization

6.1 The risk of random destruction and of random deterioration passes on to the client as soon as the goods are handed over in the warehouse for dispatch.

6.2 In the event the delivery, assembly or installation is delayed for reasons for which the client is responsible or if he is in default of acceptance, the risk passes on to the client upon the notification that the goods are ready for dispatch.

7. Acceptance

7.1 The client is obliged to inspect the goods within 7 days after receipt and shall have to inform MediaMobil in writing about ascertained defects until the 7th day stating the concrete complaint. Defects that become apparent at a later time must be notified without delay.

7.2 If the client fails to issue a written notification of defect, the goods are deemed accepted at the end of the 7th day.

8 Software and Utilization Rights, Copyrights

8.1 In case of agreements on the provision of software, MediaMobil is under obligation to provide the client with access to the offered software (licence). Access is provided in digital form.

8.2 The software is supplied in object code form without source codes. The licence exclusively permits usage in connection with the delivery. It may only be transferred together with the delivery. The orderer shall not be entitled to alter or reverse-engineer the software.

8.3 Delivery of the software is carried out by providing the acquired licences in suitable form according to MediaMobil’s specifications.

8.4 The kind and extent of usage of the acquired software, system requirements as well as licence fees follow from the respective product description, the respective licence certificate and/or the respective sales documents (offers, order confirmations). If no (deviating) provision was stipulated, the client is granted a simple, non-exclusive and non-transferable utilization right for internal usage. All rights to the software or to any possible copies remain with MediaMobil or with its suppliers. Without MediaMobil’s written approval no complete or partial copies of the software must be made. Copyright notices on the original software and on documents must be reproduced on the copies, insofar as MediaMobil has agreed that copies are made.

8.5 MediaMobil shall be obliged to provide counselling services only if this was expressly and separately agreed upon in a Service Level Agreement. MediaMobil shall only have to implement adaptations and/or alterations of the software and shall only have to create interfaces to third-party software insofar as this was expressly and separately agreed upon.

8.6 MediaMobil retains all property rights, copyrights and other industrial property rights as well as know-how rights to all offers, technical designs, planning documents, illustrations, drawings, calculations and other documents made available by MediaMobil. If third parties should assert a copyright violation vis-a-vis the client, he shall have to notify MediaMobil of it without delay. MediaMobil reserves the right to implement defensive measures. In case the client should as a result thereof be faced with compensation claims decided in last instance, MediaMobil shall indemnify the client of such claims insofar as MediaMobil was party to the proceedings.