Wireless Mobility™ 2024. All rights reserved.
Unless otherwise indicated in these general terms and conditions for sale (“Terms”), the following terms with initial capital letters shall have the meanings as set forth hereafter, applying to the singular and plural forms of each term defined.
1.1 “Affiliate” means any person or entity directly or indirectly controlling, controlled by or under common control with another person or entity. A person or entity will be deemed to control another if it owns or controls more than fifty percent (50%) of the voting stock or other ownership interest in the corporation or entity.
1.2 “Cardinal Obligation” as defined in Section 11.2 of these Terms.
1.3 “Confidential Information” means any and all information disclosed by WirelessMobility to Customer or by Customer to WirelessMobility, in connection with these Terms (including, without limitation, any idea, discovery, development, invention, know-how, information, procedure, technique, algorithm, data, material, document, notes, manual, report, study, photograph, specification, sketch, drawing, design, schematic, prototype, product, source code, research, customer list, price list, product description, business plan, marketing plan, financial information, work in process, or WirelessMobility proprietary technology), whether such information is in verbal, written, graphic or electronic form, and whether such information is disclosed before, on or after the date of execution of the contract based on these Terms.
1.4 “Customer” as defined in Section 2.1 of these Terms.
1.5 “Defective Provision” as defined in Section 15.7 of these Terms.
1.6 "Essential Secondary Obligation" as defined in Section 11.2 of these Terms.
1.7 “Intellectual Property Right” or “IPR” means any and all rights in any invention, discovery, improvement, utility, model, copyrightable work, industrial design or mask work, algorithm, data structure, trade secrets or know-how, Confidential Information, or any idea having commercial value. IPR shall include any trademark, trade dress, trade name, domain name, or other marks that serve to identify and distinguish products as coming from, or falling under the control of, a single source. IPR shall include all rights of whatsoever nature in computer software and data, all intangible rights or privileges of a nature similar to any of the foregoing in every case in any part of the world and whether or not registered, and all rights in any applications and granted registrations for any of the foregoing rights.
1.8“Orders” as defined in Section 3.1 of these Terns.
1.9 “Parties”/ “Party” means WirelessMobility and/or Customer.
1.10 "Product Liability Law" as defined in Section 12.2 of these Terms.
1.11 “WirelessMobility” means the WirelessMobility Automotive GmbH, registered with the commercial register at the local court of Bad Homburg under HRB 15881 and with its address at Leopoldsweg 2, 61348 Bad Homburg v. d. Höhe, Germany.
2.1 These Terms shall govern the relationship between WirelessMobility as seller and WirelessMobility’s customer (“Customer”) purchasing products or services (Werkleistungen) from WirelessMobility. Individual agreements made between WirelessMobility and Customer shall take precedence over these Terms whereby such agreements shall be made in written form. WirelessMobility and Customer assume – unless proven otherwise – that only written agreements were concluded.
2.2 The contract based on these Terms fully reflects all agreements made between the Parties regarding the sale of products or services. Any oral or written agreements or terms and conditions and any other pre-contractual correspondence and proposals made prior to the conclusion of the contract based on these Terms shall be superseded by the contract based on these Terms unless it is expressly stated in each case that they shall continue to be binding.
2.3 Unless otherwise agreed, these Terms apply in the version valid at the time of the Customer´s order or in any case in the version last notified to the Customer in text form and shall also apply as a framework agreement for similar future contracts without having to refer to them again in each individual case.
2.4 These Terms shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions shall only become part of the contract based on these Terms if and to the extent that WirelessMobility has expressly consented to their application. This requirement of consent shall apply in any case, for example even if the Customer refers to its general terms and conditions in the context of the order and WirelessMobility does not expressly object to this.
3.1 ACCEPTANCE OF ORDERS
All purchase orders issued by a Customer and received by WirelessMobility or its Affiliates (“Orders”) are subject to acceptance by WirelessMobility, and WirelessMobility reserves the right to reject any Order. Customer’s Order shall be deemed a binding offer of contract. Unless otherwise stated in such Order, WirelessMobility is entitled to accept the Order within fourteen days upon having received such Order.
3.2 NO CANCELLATION, RESCHEDULING AND RECALLS
3.2.1 Unless expressly agreed upon in writing by the Parties and without prejudice to Section 2.1 which shall take precedence, Customer is not entitled to cancel Orders.
3.2.2. Customer may not postpone delivery of products subject to a contract based on an Order if the delivery date of such products is within twelve (12) weeks. For any products of which the delivery date is more than twelve (12) weeks ahead, Customer may postpone the delivery date once and the postponed delivery date must be within two (2) months of the original delivery date. Customer shall reimburse WirelessMobility a monthly fee of one percent (1%) of the value of the postponed delivery (i.e. the price for the products concerned including transportation, delivery, customs, taxes and all other costs WirelessMobility has to bear according to the contract based on the Offer) for each week the delivery is postponed. WirelessMobility may claim higher damages if incurred. Customer is free to prove that lower damages arose for WirelessMobility. Parties will credit any contractual payment paid by Customer on further damage claims of WirelessMobility.
3.2.3 Customer shall bear all costs of any recalls performed. WirelessMobility shall bear costs for recalls pro rata only if (i) Parties agreed to conduct a recall upfront and (ii) to the extent the product delivered by WirelessMobility is the sole cause which made the recall necessary. If a product warning or another measure is sufficient, Parties shall agree on such measure and refrain from performing a recall. Customer shall notify WirelessMobility if Customer takes notice of any incident in the field which is likely to be in relation to or caused by a product delivered. Customer shall have processes in place to warrant effective market surveillance. Upon request of WirelessMobility, Customer shall provide WirelessMobility with evidence that Customer has sufficient product safety and recall insurance in place.
4.1 Delivery and performance dates shall be agreed upon individually between the Parties or stated by WirelessMobility upon acceptance of the Order whereby WirelessMobility will especially but not exclusively consider Customer’s reasonable interest as well as WirelessMobility’s capacities. Delivery shall be made ex works (EXW, Incoterms 2020) at WirelessMobility or WirelessMobility’s Affiliate’s site where the ordered products are manufactured according to WirelessMobility’s acceptance. Customer is aware that WirelessMobility’s Affiliates manufacture within Asia.
4.2 If Parties agree on a deviating place of delivery in the individual case, the following shall apply: Customer shall bear all costs such as transportation, delivery, customs and/or taxes in connection with the deviating place of delivery. Unless otherwise agreed, WirelessMobility is entitled to determine the type of shipment at its reasonable discretion (in particular transport company, shipping route, packaging). The risk of accidental loss, delivery in time and accidental deterioration of the products shall pass to the Customer at the latest upon handover to the first respective shipment provider.
4.3 Deadlines and dates for deliveries and performance of services by WirelessMobility are only approximate, unless a fixed deadline or date has been expressly agreed between the Parties. WirelessMobility will schedule manufacturing based on available production capacity at the time of receipt of all necessary information. In the event of non-delivery or untimely self-delivery, WirelessMobility shall not be in default unless WirelessMobility is responsible for the non-delivery or untimely self-delivery. WirelessMobility shall be entitled to withdraw from the contract (Rücktritt vom Vertrag) based on these Terms if it is certain that self-delivery with the products ordered, despite the conclusion of a congruent covering transaction (kongruentes Deckungsgeschäft), will not take place for reasons for which WirelessMobility is not responsible. Any statutory rights of withdrawal (gesetzliche Rücktrittsrechte) shall remain unaffected.
4.4 Notwithstanding any other individual agreements between WirelessMobility and the Customer, WirelessMobility shall be entitled to make partial deliveries and render partial services to a reasonable extent if,
(a) the partial delivery or service is usable for the Customer within the scope of the intended purpose,
(b) the delivery of the remaining ordered products is ensured, and
(c) the Customer does not incur any significant additional expenses or costs as a result (unless WirelessMobility agrees to bear such costs).
This does not apply to customary deviations in quantity, which are permissible without restrictions and are invoiced in accordance with the quantity actually delivered. This includes deliveries of products that deviate by up to +/- 5 % from the agreed weight or volume.
4.5 If Customer is in delay to accept a partial delivery although the requirements of Section 4.4 are met, which the Parties assume as true subject to the proof to the contrary, WirelessMobility may either (i) withdraw from the contract based on these Terms and claim damages or (ii) invoice products ready for delivery and store the products at Customer’s cost.
4.6 If Customer rejects or revokes acceptance of any products or services, all risk of loss and/or damage to such products shall nonetheless remain with Customer. The statutory provisions on default of acceptance (Annahmeverzug) shall apply.
4.7 If the Customer is in default of acceptance, fails to cooperate or delays WirelessMobility´s delivery or performances for other reasons for which the Customer is responsible, WirelessMobility is entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). Parties assume that Customer shall reimburse WirelessMobility a monthly fee of one percent (1%) of the value of the products affected for each week the conditions mentioned in the sentence before persist. WirelessMobility may claim higher damages if incurred. Customer is free to prove that lower damages arose for WirelessMobility. Parties will credit any contractual payment paid by Customer on further damage claims of WirelessMobility.
4.8 In cases of services rendered by WirelessMobility, Customer is obliged to accept the service rendered. Customer may not refuse acceptance in case of minor defects. A service rendered shall also be deemed to have been accepted by Customer if WirelessMobility has set the Customer a reasonable period for acceptance after completion of the services and the Customer has not refused acceptance within this period, stating at least one defect. WirelessMobility will inform Customer on the legal consequences of an omitted acceptance.
5.1 Unless otherwise agreed by the Parties, all payments for products shall be made in EURO.
5.2 WirelessMobility shall determine within the invoice the payment terms at it´s reasonable discretion while taking into account Customer’s reasonable interests. If WirelessMobility refrains from specifying payment terms in the invoice, Customer shall pay within 14 calendar days after having received the invoice. If Customer fails to make timely payment, Customer shall be in default without further notice. Parties consider – subject to proof to the contrary – an invoice to have been received by Customer if WirelessMobility has sent an invoice to the Customer’s email address from which the Customer has sent its last email.
5.3 If Customer is in default, Customer shall pay a contractual penalty of one percent (1%) of the total purchase price of the ordered but unpaid products or services for each day of default up to a maximum of ten percent (10%) of the total price. WirelessMobility may claim higher damages if incurred. Customer is free to prove that lower damages arose for WirelessMobility. The Customer is obliged to pay the contractual penalty to WirelessMobility within seven (7) calendar days after having receipt WirelessMobility's written request for payment of the contractual penalty. Customer shall not be obliged to pay the contractual penalty if Customer is not at fault for its delay in payment. The contractual payment shall not exclude further damage claims against the Customer whereby Parties will credit any contractual payment paid by Customer on further damage claims of WirelessMobility. Furthermore, WirelessMobility is entitled to withhold deliveries as long as Customer is in delay of payment.
5.4 In the event of default in payment on the part of the Customer, WirelessMobility shall charge interest at a rate of 9 percentage points above the current base interest rate of the European Central Bank p.a. WirelessMobility is entitled to claim higher damages for default where occured. WirelessMobility is entitled to withhold provision of services and products if Customer is in payment default arising from other contractual relationships between the Parties.
5.4 WirelessMobility´s claims shall become due immediately if contractual agreements have been seriously violated by the Customer and the Customer is responsible for this. In this case, WirelessMobility is entitled to execute or provide outstanding deliveries or services only against advance payment or provision of security. The same shall apply in the event of default of payment by the Customer or if there are reasonable doubts about the Customer´s solvency or creditworthiness.
5.6 If any action is taken by WirelessMobility to collect any amount due, whether through a collection agency, attorney or otherwise, Customer will pay all costs (including, without limitation, interest, court costs and attorneys’ fees) incurred by WirelessMobility in collecting such amount. WirelessMobility in its sole discretion and determination, may require Customer to provide sufficient evidence of its ability to pay WirelessMobility any amounts that may become due under the Order. Such evidence may include, but is not limited to, local bank affirmation of Customer's credit, an irrevocable confirmed letter of credit payable at sight issued by a bank acceptable to WirelessMobility in favor of Customer for all amounts due to WirelessMobility as a result of the Parties’ activity hereunder.
6.1 Prices for products and services will be as determined in WirelessMobility’s Order confirmation or pricing information such as a price list. In cases of deviations between different pricing sources, the most recent pricing information shall prevail.
6.2 Unless otherwise agreed upon between the Parties in the individual case, all prices are net, ex works (EXW, Incoterms 2020) at the WirelessMobility or WirelessMobility’s Affiliate’s site where the ordered products are manufactured, and exclude installation and handling as well as possible charges, customs duties or taxes, such as VAT or similar. Customer must pay these charges, taxes or duties directly if the law permits, or will reimburse WirelessMobility if WirelessMobility is required to collect and pay them. If applicable, Customer will provide certificates of tax exemption in advance, or will provide evidence of tax payment upon request.
6.3 WirelessMobility shall adjust the prices to be paid at its reasonable discretion to the development of the costs which are decisive for the price calculation. A price increase shall be considered if, for example, the costs for the procurement of energy or raw materials increase. Increases in one type of cost, e.g. the costs for the procurement of energy, may only be used for a price increase to the extent that no compensation is made by possible decreases in costs in other areas, e.g. the costs for the procurement of raw materials.
6.4 Within the framework of an individual purchase contract subject to these Terms, WirelessMobility shall be entitled to make a price change if there are more than three months between the conclusion of the contract and the agreed delivery date.
7.1 The statutory provisions shall apply to the Customer´s rights in the event of negative deviations of the products or services rendered from the agreed specifications and defects of title (including incorrect and short delivery as well as improper assembly/installation or defective instructions), unless otherwise stipulated below. WirelessMobility shall not assume any further warranty or guarantee, e.g. the suitability of the product for a specific purpose.
7.2 The Customer shall inspect the products after delivery and the services rendered without undue delay. The products delivered and the services rendered shall be deemed to have been approved by the Customer if WirelessMobility is not notified in writing of a defect (i) in the case of obvious defects without undue delay, but no later than seven (7) calendar days after delivery of the products to the Customer or acceptance of the services by the Customer, or (ii) in the case of hidden defects without undue delay, too, but no later than ten (10) calendar days after discovery of the defect. WirelessMobility shall not be liable for defects of which the Customer is aware at the time of conclusion of the contract or is not aware due to gross negligence (Section 442 German Civil Code). If the Customer accepts a defective service, although the Customer is aware of the defect, the Customer shall only be entitled to its statutory rights as amended within these Terms if the Customer reserves his rights at the time of acceptance.
7.3 Customer’s specifications which are subject to an individual agreement between the Parties and technical specifications which were publicly announced by WirelessMobility (in particular in catalogues or on WirelessMobility´s homepage) at the time of the conclusion of the contract subject to these Terms shall be deemed to be an agreement on specifications. Product documents, illustrations, details of performance, weights and dimensions in WirelessMobility’s catalogues, product sheets and on WirelessMobility’s internet pages referring to the products offered, will be as accurate as possible. However, unless otherwise stated in the first sentence of this Section 7.3 or agreed upon between the Parties, these only represent approximate values and especially shall not constitute a statement of condition or a guarantee of the products. Any markings on the products that are required by law (such as CE marking, WEEE marking) as well as batch numbers or other identification features do not contain any indication of the nature of products or guarantees vis-à-vis the Customer, but are affixed by WirelessMobility according to statutory provisions in order to comply with WirelessMobility’s regulatory obligations. Customer shall further inform WirelessMobility on any standards with standard essential patent applying to the products. If any licenses are required for standard essential patents applying to the products, such license shall only be obtained by WirelessMobility on behalf of Customer if related royalties are included into the purchase price of products; otherwise any claim for defect or warranty by WirelessMobility for related third party IP infringement shall be excluded. The Customer shall be responsible for reading the associated product information carefully before using the products and to use the products with due care, especially if the products may pose a risk to the health of the Customer or third parties. The Customer shall be responsible for the marketability of the products from the time of the transfer of risk. The Customer must comply with the relevant regulatory and legal provisions.
7.4 If a product demonstrably has a material defect within the warranty period (limited according to Section 11 of these Terms), Customer notifies WirelessMobility of the defect according to Section 7.2 of these Terms and the cause of the defect already existed at the time of the transfer of risk, WirelessMobility shall, at its option, remedy the defect or deliver a defect-free product for subsequent performance. The Customer´s claims in respect of expenses incurred in the course of subsequent performance, in particular transport, travel, labour and material costs, shall be governed by the statutory provisions. This does not apply insofar as the expenses increase because the product was subsequently taken to a place other than the original place of delivery, unless the transfer corresponds to the intended use of the product. If the type of subsequent performance chosen by WirelessMobility is unreasonable for the Customer in the individual case, Customer may reject it. WirelessMobility´s right to refuse subsequent performance under the statutory conditions remains unaffected.
7.5 The Customer shall give WirelessMobility the time and opportunity required for the subsequent performance, in particular hand over the products complained about for inspection purposes. In the event of a replacement delivery, the Customer shall return the replaced products to WirelessMobility in accordance with the statutory provisions.
7.6 Customer does not have the right to reject nonconforming products to the extent that: (a) the products were not stored in normal warehousing conditions in the original packaging as delivered, (b) such products were exposed to temperatures less than 40°F or 4 degrees Celsius or higher than 120°F or 49 degrees Celsius, or (c) the products were used for purposes other than its approved and intended uses. Customer must provide to WirelessMobility all materials and documentation necessary for the investigation or resolution of any nonconforming product claims, including, but not limited to, product samples, weight tickets, and shipping and warehousing documents. In case WirelessMobility accepts the defective nature of the products, WirelessMobility will exercise its commercially reasonable efforts to, at its option, either replace at the original point of delivery, or allow a credit for, any such nonconforming products as soon as reasonably possible.
7.7 In the event of defects of title, WirelessMobility shall also be entitled, at its own discretion, to acquire any necessary rights of use or to adapt the products or services within the scope of the specification in such a way that there are no (more) defects of title. In the event of fraudulent concealment of defects or the assumption of a guarantee for the quality or durability of the object of purchase, further claims of the Customer shall remain unaffected.
7.8 If a notice of defect is unjustified, WirelessMobility shall be entitled to demand reimbursement of the expenses incurred by WirelessMobility from the Customer, unless the Customer proves that it was unable to detect the absence of a defect when exercising due diligence.
8.1. The products delivered shall remain WirelessMobility’s property until full payment of all claims arising from the contract and all other claims which WirelessMobility subsequently obtains on the Customer in direct connection with the products delivered - irrespective of the legal grounds. Furthermore, the products shall remain WirelessMobility’s property as products subject to retention of title until the fulfilment of all other claims which WirelessMobility obtains on the Customer - irrespective of the legal grounds – now or in the future (including all balance claims from current account). In the case of a current account, the products subject to retention of title shall serve as security for WirelessMobility’s balance claim.
8.2 The Customer shall be entitled to resell and process the products subject to retention of title in the ordinary course of business. The right to resell or process shall not exist if the Customer is in default of payment or has not only temporarily suspended payments. WirelessMobility shall be entitled to revoke the authorisation to resell or process if an objectively justified reason exists and as long as WirelessMobility is the owner of the products subject to retention of title. The Customer hereby assigns to WirelessMobility all claims including all ancillary rights to which the Customer is entitled from the resale or processing of the products subject to retention of title, and WirelessMobility accepts this assignment.
8.3 The Customer is authorised to collect the claims assigned until revoked. WirelessMobility may revoke the direct debit authorisation if an objectively justified reason exists. WirelessMobility is authorised to collect the claims itself, but WirelessMobility will not collect the claims for as long as the Customer duly meets its payment obligations.
8.4 If the Customer does not meet its payment obligations and WirelessMobility is therefore authorised to collect the claims itself, the Customer must hand over to WirelessMobility on request a list of all products subject to retention of title, the claims assigned and the names and addresses of the debtors with the amount of the claims. Upon request, the Customer is obliged and WirelessMobility is entitled to notify the debtors of the assignment of the claim.
8.5 As long as the retention of title persists, any pledging, transfer of ownership by way of security, leasing or any other transfer of the products subject to retention of title which impairs WirelessMobility’s security shall require WirelessMobility’s prior written consent. In the event of access by third parties, e.g. compulsory enforcement measures, the Customer must inform WirelessMobility without undue delay and provide WirelessMobility with all information and documents required to protect WirelessMobility’s rights, as well as inform the third party of WirelessMobility’s retention of title.
8.6 The Customer is obliged to handle the products subject to retention of title with care and to notify WirelessMobility of any loss, destruction or damage without undue delay. The Customer shall insure the products subject to retention of title sufficiently against theft, burglary, water and fire damage and keep them under insurance cover. The Customer hereby assigns to WirelessMobility the claims to which it is entitled against its insurer in the event of a claim, insofar as they relate to the property or co-property of WirelessMobility, and WirelessMobility accepts this assignment.
8.7 At the Customer´s request, WirelessMobility is obliged to waive the retention of title or to release securities at WirelessMobility’s discretion if the Customer has fulfilled all claims in connection with the products subject to retention of title or if the value realisable from the total securities granted to WirelessMobility from retention of title, transfer of ownership by way of security and assignment in advance exceeds the total sum of the claims on the Customer by more than ten (10) percent.
The sale of products hereunder does not convey any express or implied license under any patent, copyright, trademark or other proprietary rights owned or controlled by WirelessMobility, whether relating to the products sold or any manufacturing process or other matter. Without prejudice to any license which WirelessMobility may have and which may by law, or subject to an agreement with Customer according to which any royalty due for the Product is included into the sales price and thus extending the scope of such license for such Product to Customer, all rights under any patent, copyright, trademark or other proprietary rights are expressly reserved by WirelessMobility. WirelessMobility shall not be held liable for any claims arising out of any third party IP infringement unless a license is extended to Customer by agreement, or a written warranty is given by WirelessMobility to Customer covering such IP infringement.
10.1 Notwithstanding Section 8 of these Terms which shall take precedence, Customer shall have the right to process and integrate the products to Customer's products and to sell, offer to sell, and distribute such Customer products. Customer shall not remove or omit any copyright or other proprietary notices placed or included by WirelessMobility on any product or in the product software, documentation or other materials provided in conjunction with the product. Nothing in these Terms shall be construed as a sale, assignment or transfer of product software to Customer or any customer of Customer; provided, however, that each Customer which purchases a Customer product containing a WirelessMobility product shall have a limited license to use and execute the WirelessMobility software as required for the use of such Customer product, and for no other purpose. Except with the prior written consent of WirelessMobility, Customer shall not (a) disassemble, decompile, decode, reverse engineer, alter, modify, adapt, or create any derivative works based on, the software; (b) copy the software; or (c) distribute the software apart from the associated WirelessMobility products.
10.2 Where WirelessMobility has agreed that any product sold hereunder shall be manufactured in whole or in part from specifications furnished by Customer, Customer warrants that such specifications furnished by Customer do not infringe upon the Intellectual Property Rights of any third party. Customer shall indemnify WirelessMobility against and hold harmless WirelessMobility from all loss, damage and expense arising out of any suit or claim against WirelessMobility for infringement of any patent, trademark, or copyright or of any other Intellectual Property Rights of any third party because of WirelessMobility’s manufacture of such product or because of the use or sale of such products by any person. At WirelessMobility’s discretion, Customer shall appear in and assume the defense of any litigation which may result from such infringement.
11.1 Unless otherwise stipulated in these Terms, WirelessMobility shall be liable for a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
11.2 WirelessMobility shall be liable without limitation for damages in the event of intent and gross negligence as well as in the event of a breach of material contractual obligations, the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the Customer may regularly rely ("Cardinal Obligation"). In the event of a slightly negligent breach of a Cardinal Obligation or a secondary obligation, the breach of which jeopardises the achievement of the purpose of the contract or the fulfilment of which makes the proper performance of the contract possible in the first place and on the observance of which the Customer could rely ("Essential Secondary Obligation"), WirelessMobility's liability shall be limited to damage typical for the contract and foreseeable at the time of conclusion of the contract.
11.3 In any case, WirelessMobility´s liability in the event of a slightly negligent breach of a primary obligation or an Essential Secondary Obligation shall be limited to twice the Order value.
11.4 WirelessMobility shall not be liable in the event of a slightly negligent breach of secondary contractual obligations which are not Essential Secondary Obligations.
11.5 The above exclusions and limitations of liability shall not apply in the event of fraudulent concealment of defects or in the event of the assumption of a guarantee of quality, to liability for claims of the Customer based on Product Liability Law and for bodily injury and damage to health or in the event of loss of life of the Customer. This does not imply a change in the burden of proof to the detriment of the Customer.
11.6 These resulting limitations of liability shall also apply to third parties as well as in the case of breaches of duty by persons (also in their favour) whose fault WirelessMobility is responsible for according to statutory provisions. They do not apply if a defect has been fraudulently concealed or a guarantee for the quality of the products has been assumed and for claims of the Customer under the German Product Liability Act or any other national act based on European product liability law (Directive 85/374/EEC as amended from time to time).
11.7 The Customer may only withdraw from or terminate the contract subject to these Terms due to a breach of duty which does not consist of a defect if WirelessMobility is responsible for the breach of duty. A free right of termination of the Customer is excluded. In all other respects, the statutory prerequisites and legal consequences shall apply.
11.8 The provisions of this Section shall also apply if the Customer asserts a claim for reimbursement of futile expenses instead of a claim for damages in lieu of performance.
12.1 In the event of any claim by a third party against the Customer which bases on an alleged defect of or issue with the product of WirelessMobility, Customer shall: (a) promptly notify WirelessMobility and immediately grant WirelessMobility, upon request of WirelessMobility, the sole right to control and direct the investigation, preparation, defense and settlement of such claim, including the selection of counsel; (b) fully cooperate with WirelessMobility in the defense thereof and any related settlement negotiations and also provide all available information, assistance, and authority reasonably necessary to defend any such claim; and (c) not settle any such claims without WirelessMobility´s prior written consent.
12.2 Customer agrees to defend, hold harmless, and indemnify WirelessMobility and its directors, officers, employees, agents and Affiliates from and against any and all damages, liability, costs and expenses (including but not limited to reasonable attorneys’ fees) arising out of any (i) modification, alteration or enhancement of a product by someone other than WirelessMobility or otherwise authorized in writing by WirelessMobility or the use, sale or distribution of such modified product; (ii) the use, sale or distribution of the product in combination with any hardware, software or equipment that has not been supplied by WirelessMobility if it was deemed the cause of the underlying claim; (iii) product designs, code, specifications, or requirements furnished by Customer and which are not a pre-existing design, code, specification, or requirement offered by WirelessMobility; (iv) use of a product beyond the written specifications of that product provided by WirelessMobility to Customer in connection with the product; (v) the use or distribution of the products in an application or environment on a platform or with devices for which the products were not designed, contemplated, or reasonably anticipated by the Parties; (vi) Customer’s use, sale, importation or other disposition of the products after either (vi (a)) WirelessMobility´s written notice to Customer that Customer should cease any such activity, or (vi (b)) Customer’s failure to use materials or instructions provided by WirelessMobility, or updated versions of the products, which would have rendered the products non-infringing; (vii) any open source software or its use in connection with the product unless otherwise stipulated in these Terms or any product schedule, or any exhibit or attachment attached thereto; or (viii) infringement of any standard essential patents which have not been licensed to Customer by agreement or law, as stipulated in Sec. 7.3 and Sec. 9 above. Nothing in this Section is intended to limit WirelessMobility´s liability according to European product liability law such as Directive 85/374/EEC (as amended) or their respective implementations to national law ("Product Liability Law") such as the German Product Liability Act (Produkthaftungsgesetz). If (a) WirelessMobility is claimed by a third party based on Product Liability Law and (b) one or more of the situations described under this Section 12.2 ((i) to (viii)) are given, Customer shall indemnify and hold harmless WirelessMobility of any costs arising from the claim made by the third party, e.g. for all costs arising from reasonable legal defence against such claim.
12.3 WirelessMobility shall promptly provide Customer with notice of any indemnified claim and cooperate with Customer, at its expense, in the defense or settlement of any such claim.
The Customer shall only be entitled to rights of set-off or retention insofar as his claim has been legally established or is undisputed. The Customer is only entitled to assert rights of retention on the basis of counterclaims from the same contractual relationship. In the event of defects in the delivery, the Customer´s counter rights shall remain unaffected.
14.1 Notwithstanding Section 11 which shall take precedence, the general limitation period for claims arising from material defects and defects of title shall be twelve (12) months from delivery. If acceptance has been agreed, the limitation period shall begin with acceptance. In case of replacement or remanufacturing in connection with subsequent performance, the limitation period for warranty claims is twelve (12) months from the fulfillment of subsequent performance, provided that subsequent performance is made with an express or implied acknowledgment of the duty to remedy defects and not, for example, out of goodwill or in the interest of continued business relations.
14.2 In the case of repair in connection with subsequent performance, the limitation period for warranty claims for repaired parts is twelve (12) months from the fulfilment of subsequent performance, provided that it is question of the defect which has already been repaired or defects in the repair work, and provided that repair is made with an express or implied acknowledgement of the duty to remedy defects and not, for example, out of goodwill or in the interest of continued business relations.
14.3 Other special statutory provisions on the limitation period (in particular Section 438 para. 1 No. 1, para. 3, Sections 444, 445b German Civil Code) shall remain unaffected.
14.4 The above limitation periods of the law on sales also apply to contractual and non-contractual claims for damages of the Customer based on a defect of the products, unless the application of the regular statutory limitation period (Sections 195, 199 German Civil Code) would lead to a shorter limitation period in individual cases. Claims for damages by the Customer, including claims under the German Product Liability Act or any other national act based on European product liability law (Directive 85/374/EEC as amended from time to time), shall become statute-barred exclusively in accordance with the statutory limitation periods.
15.1 ENTIRE AGREEMENT, LANGUAGE
These Terms constitute the entire agreement of the Parties and supersede all prior negotiations, proposals, agreements and understandings, whether oral or written, relating to the products to be purchased hereunder or otherwise relating to the subject matter of these Terms. Any representation, warranty, course of dealing or trade usage not expressly contained or referenced herein shall not be binding on WirelessMobility. All communications between the Parties must be in the English language.
15.2 ASSIGNMENT
15.2.1 Customer shall not assign or transfer any rights or claim under contracts based on these Terms without the prior written consent of WirelessMobility, and any purported assignment made without such consent shall be void. If WirelessMobility agrees to an assignment, the Customer will remain jointly and severally liable together with the assignee for the performance of all the obligations mentioned hereunder. An assignment without the prior written consent of WirelessMobility shall be void. The Customer will indemnify and hold harmless WirelessMobility against any claims of third parties against WirelessMobility arising from an assignment by the Customer without the consent of WirelessMobility.
15.2.2 In the event that the Customer assigns a contract based on these Terns to an Affiliate or a third party without the WirelessMobility´s written consent, WirelessMobility may claim damages.
15.2.3 WirelessMobility may assign these Terms, any contract based on these Terns and any of its rights and obligations hereunder to any Affiliate thereof, or to any Customer of all or substantially all of its assets relating to these Terms.
15.2.4 The commissioning of third parties shall not affect the WirelessMobility´s direct legal liability towards the Customer.
15.2.5 The subcontractors commissioned to fulfil an order are not to be regarded as vicarious agents of WirelessMobility in relation to the Customer. WirelessMobility shall not be liable for any slightly negligent fault of the subcontractors.
15.2.6 If a defect in the purchased product is due to intentional or negligent conduct on the part of the subcontractor, the Customer shall assert any claims directly against the subcontractor.
15.3 EXPORT CONTROL
Each party will comply with all import and export control laws and regulations. Customer agrees to obtain and maintain any export and import license(s) required for the delivery of products to Customer under these Terms.
15.4 CONFIDENTIALITY
15.4.1 With respect to any information provided in connection with contracts based on these Terms and identified by either Party as confidential, or information that a Party should assume to be confidential based on its subject matter or circumstances, the other Party agrees to reasonably and adequately protect such confidential information and to use it only as necessary to record performance for or fulfill obligations under the general terms and conditions of sale and for no other purpose.
15.4.2 The obligations of this clause do not apply to information that: (i) is publicly known; (ii) is already known to the other Party; (iii) has been lawfully disclosed by a third party; (iv) has been independently developed; or (v) has been disclosed pursuant to a statutory duty or order. The other party shall have the right to disclose the confidential information to its subcontractors, agents or Affiliates as necessary, provided that such subcontractors, agents or Affiliates agree to terms of confidentiality and non-use that are substantially similar to the obligations set herein.
15.4.3 The confidential information may be used solely in connection with the exercise or exercise of rights and/or the performance of obligations under these Terms and not otherwise for the receiving party's own benefit or for the benefit of any third party.
15.5 NO WAIVER
No failure or delay by WirelessMobility to exercise any right or remedy provided under any contract or by any applicable law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise by WirelessMobility of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. No waiver by WirelessMobility of a Customer breach shall constitute a waiver of any subsequent Customer breach. No course of dealing or course of perfomance may be used to evidence a waiver of limitation of the Customers´ obligations under a contract based on these Terms.
15.6 FORCE MAJEURE
If labor disputes, fires or other casualties, accidents, acts of God, riots, wars, the effects of pandemics or epidemics, governmental control or regulation, or lack of transportation, power, fuel or raw materials, or any other cause or reason beyond the control of WirelessMobility, affect WirelessMobility´s ability to produce or ship the products or render any services, WirelessMobility shall have the right to delay or suspend shipment without liability to Customer for any damages resulting from failure to ship or late shipment. This shall also apply if these circumstances occur at WirelessMobility's suppliers or their sub-suppliers. Additionally, if for any of those reasons WirelessMobility is unable to supply the total demands of all of Customers, WirelessMobility, shall have the right to allocate its available supply among its Customers in what WirelessMobility in its sole discretion deems to be a fair and equitable manner. WirelessMobility shall not be responsible for any damages that Customer may incur as a result of any late shipment or failure to ship pursuant to this paragraph.
15.7 AMENDMENTS, SEVERABILITY
15.7.1. No change or supplement to these Terms shall be binding on WirelessMobility unless agreed to in writing by WirelessMobility's authorized representative.
15.7.2. The invalidity or unenforceability, in whole or in part, of any provision herein shall not affect the validity or enforceability of any other provision herein. If a court of competent jurisdiction finds any provision of these Terms to be void, invalid or unenforceable in whole or in part ("Defective Provision"), the validity and enforceability of the remaining provisions of these Terms shall not be affected. Instead, the Parties undertake to replace the Defective Provision with a provision which, to the extent legally possible, comes as close as possible to what the parties would have agreed in accordance with the meaning and purpose of these Terms if they had recognised the defectiveness of the provision. If the defectiveness of a provision is based on a measure of performance or time (period or deadline) stipulated therein, the provision shall be reconciled with a legally permissible measure that comes as close as possible to the original measure. The same shall apply to any loopholes in these Terms.
15.8 GOVERNING LAW, JURISDICTION and GERMAN TERMS
15.8.1. In the event of a dispute between Customer and WirelessMobility arising out of, or relating to, these Terms, their interpretation or performance hereunder, the Parties shall exert their best efforts to resolve the dispute amicably through negotiations. The validity, construction, and interpretation of these Terms and all purchase Orders issued hereunder and all contracts based on these Terms shall be solely and exclusively governed by and construed in accordance with the law of the Federal Republic of Germany under exclusion of the conflict of law rules and under exclusion of the UN Convention on Contracts for the International Sale of Products (CISG).
15.8.2 The exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship based on these Terms shall be Bad Homburg, Germany. However, WirelessMobility is also entitled to bring an action at the place of performance of the delivery obligation in accordance with Terms. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.
15.8.3 Terms in German in brackets serve to clarify the English words.