General Terms and Conditions of MOIO GmbH
Status: August 2021
1. Scope of application
These General Terms and Conditions (“GTC“) apply to purchase agreements, rental agreements and other contractual agreements and services of MOIO GmbH (“MOIO“) vis-à-vis an entrepreneur within the meaning of Section 14 (1) of the German Civil Code (“Customer“) (MOIO and Customer together the “Parties” and each the “Party“).
MOIO shall not recognize any deviating or conflicting terms and conditions, in particular terms and conditions of purchase, business and payment of the Customer, even if MOIO does not expressly object to them or performs deliveries or other services without reservation.
Individual contractual provisions in writing, in particular provisions in the purchase agreement or rental agreement with the customer, shall take precedence over provisions in these GTC.
2. Conclusion of contract
A contract shall not be concluded until MOIO has issued an acceptance, order or order confirmation in text form, unless a stricter formal requirement applies by law or contractual agreement.
The order placed by the customer shall be deemed to be a binding offer to enter into a contract. In the absence of any contractual provision to the contrary, MOIO shall be entitled to accept the contractual offer within three (3) months of its receipt.
A customer’s order shall expire if it is not confirmed by MOIO in text form within three (3) months of receipt by MOIO.
All agreements made between MOIO and the customer shall only be effective if they are set down at least in text form. This shall also apply to any waiver of this text form requirement.
Statements made by MOIO in public statements, brochures or advertising represent approximate values. They are not binding on MOIO unless they are expressly confirmed or agreed with the customer in writing.
MOIO reserves the right to make any changes to the subject matter of the contract that become necessary after the conclusion of the contract and that are not caused by MOIO in bad faith due to further technical developments, provided that such changes are reasonable for the customer.
3. Provision of documents and confidentiality
The customer is liable for the correctness of documents and information to be provided by him. In the event of untimely or incomplete provision of documents by the customer, MOIO reserves the right to plead non-performance of the contract and other rights.
The parties agree to treat all confidential information made available to them in the course of the performance of the contractual relationship as strictly confidential and to use it only for the purposes specified in the contract. For the purpose of this provision, confidential information shall mean all information, documents, details and data that are marked as such or are to be considered confidential due to their nature.
The obligation of confidentiality shall not apply to the extent that a party or its agents are obliged to disclose information due to mandatory law or the enforceable decision of a court or authority. In this case, the respective party shall inform the other party thereof and, in coordination with each other, take all necessary and legally permissible measures to avoid disclosure or to ensure the most confidential treatment possible.
Furthermore, confidentiality shall not apply to disclosure to persons bound to professional secrecy and to employees and contractual partners who require the information for the preparation and execution of the transaction, provided that they have previously been bound to an equivalent confidentiality.
MOIO is entitled to make confidential information available to investors or financing partners to the extent that they reasonably require the confidential information.
4. Delivery/delivery deadlines/delivery dates
The scope and execution of the delivery shall be governed by MOIO’s order or order confirmation.
MOIO shall be entitled to make partial deliveries, provided that the partial delivery is reasonable for the customer. Partial deliveries shall be invoiced separately and shall be due for payment irrespective of the outstanding delivery.
Delivery deadlines or delivery periods or dates are only binding if they have been agreed in text form. Delivery periods shall commence on the date of dispatch of the order confirmation. In the event of subsequently agreed changes to the order, the delivery periods or delivery periods or dates shall be extended or postponed accordingly.
A delivery period or delivery period or delivery date shall be extended or postponed in particular by the duration of the delay,
if MOIO fails to obtain the information and cooperation from the customer required for performance;
if MOIO is prevented from fulfilling its obligations due to the occurrence of force majeure, e.g. war, natural disasters, strike, lockout, official orders, energy supply difficulties, general disruptions to telecommunications or similar reasons.
If delivery or performance becomes impossible or unreasonable due to the aforementioned events, MOIO shall be released from its delivery obligation. In such cases, MOIO shall be entitled to withdraw from the contract. MOIO shall notify the customer immediately of the occurrence of the aforementioned events.
MOIO shall be entitled to withdraw from the contract in the event of non-delivery, incorrect delivery or late delivery by its own suppliers, provided that MOIO is not responsible for the impediment to delivery.
If a delay in delivery lasts longer than 3 months or if performance of the contract becomes impossible for reasons for which MOIO is not responsible, the parties shall be obliged to renegotiate the terms of the contract in good faith and taking into account the changed circumstances. If the parties are unable to agree on a new contract satisfactory to both parties within a reasonable period of time, both parties shall be entitled to withdraw from the contract without further notice.
If the customer defaults on acceptance or breaches other duties to cooperate, MOIO may demand compensation for any damage incurred, including any additional expenses. Insofar as the conditions of sentence 1 exist, the risk of accidental loss or accidental deterioration of the item shall also pass to the customer at the point in time at which the customer defaults on acceptance.
Cancellations by the customer are only possible if contractually agreed or with the written consent of MOIO. MOIO may demand reasonable compensation for services already rendered and expenses incurred.
5. Packaging and transport
The goods shall be shipped at the discretion of MOIO. MOIO is not obliged to take out transport insurance. If the customer requests transport insurance, MOIO shall take out such insurance for the delivery. The customer shall bear the costs incurred in this connection.
Any customs duties, fees, taxes and other public charges within the scope of the deliveries shall be borne by the customer.
6. Notice of defects and warranty
The customer shall inspect the goods received immediately upon arrival, in particular with regard to quantity (completeness) and condition (freedom from defects). The customer shall notify MOIO of any defects immediately, at the latest within ten (10) working days after delivery, by registered letter, fax or e-mail. In the case of hidden defects which cannot be detected within the scope of a normal or reasonable incoming goods inspection, the obligation to give notice of defects shall apply from the time the defect becomes apparent. If no complaint is made by the customer within the aforementioned periods, the goods shall be deemed to be in conformity with the contract. Defective goods shall be sent or handed over to MOIO free of shipping costs.
In the event of a defect, MOIO shall have the option to remedy the defect or to make a replacement delivery in return for the return of the goods complained about.
The mere performance of the rectification or replacement delivery shall not constitute an acknowledgement of the existence of the defect. Insofar as the period of limitation begins anew as a result of the subsequent performance, this shall only apply to the respective defective product, but not to the other products.
If the defect cannot be remedied or if further attempts to remedy the defect are unreasonable for the customer or if the replacement delivery fails, the customer shall be entitled, at its own discretion, to withdraw from the contract or to demand a reasonable reduction of the purchase price (abatement). Claims for damages and reimbursement of expenses shall remain unaffected in accordance with Clause 9.
Claims due to a defect do not exist in the case of natural wear and tear, as well as in the case of damage resulting from incorrect or negligent handling by the customer or user, excessive stress, unsuitable operating materials, electronic or electrical influences or similar circumstances.
Contractual claims due to a defect become time-barred at the latest two years after delivery, insofar as no deviating contractual regulation exists.
MOIO shall be liable in the event of intent or gross negligence by MOIO, its legal representatives or vicarious agents.
Furthermore, MOIO shall be liable for the slightly negligent breach of essential obligations, the breach of which jeopardizes the achievement of the purpose of the contract, or for the breach of obligations, the fulfillment of which makes the proper execution of the contract possible in the first place and on the compliance with which the Lessee may regularly rely. In this case, however, MOIO shall only be liable for the foreseeable damage typical for the contract.
The statutory liability of MOIO in the event of damage arising from injury to life, limb or health from simple negligence on the part of organs and employees of MOIO as well as liability under mandatory statutory provisions, in particular liability under the Product Liability Act, shall remain unaffected.
MOIO shall not be liable in cases of force majeure and circumstances within the customer’s sphere of influence (e.g. failure to provide cooperation services on time or system or server malfunctions at the customer’s or user’s premises).
MOIO shall only be liable for properties and services which are set out in the respective product or service descriptions or which are mandatory by nature of the delivered item (but not, for example, for the necessary infrastructure of the customer).
8. Terms of payment
Unless otherwise agreed, all invoices are to be paid within 30 days of the invoice date without any deductions. The customer is in default if due payments are not settled within 30 days after receipt of an invoice or a similar request for payment.
If payment terms from transactions made within two years have not been complied with by the customer, MOIO shall be entitled to supply the customer only against cash on delivery or cash in advance.
Bills of exchange shall only be accepted by agreement and only on account of payment. All costs in connection therewith, in particular collection and discount charges, shall be borne by the customer and shall be due immediately. Bills of exchange are accepted without guarantee for correct presentation and protest. MOIO expressly reserves the right to reject bills of exchange. Other payment instructions and cheques are generally accepted by MOIO.
In the event of default in payment – including in the event of deferral – interest shall be payable at a rate of 9 percentage points for non-consumers and 5 percentage points for consumers above the respective base interest rate. This does not exclude the assertion of further damage caused by default. Reminder fees of € 5.00 shall be payable in the third reminder stage and reminder fees of € 7.50 shall be payable in the fourth reminder stage.
The customer shall only be entitled to rights of set-off and retention if its counterclaims have been legally established, acknowledged by MOIO or are undisputed.
If, after conclusion of the contract, it becomes apparent that MOIO’s claim to the purchase price is jeopardized by the customer’s inability to pay (e.g. by an application for the institution of insolvency proceedings), MOIO shall be entitled in accordance with the statutory provisions to refuse performance and – if necessary after setting a deadline – to withdraw from the contract (Section 321 BGB).
9. Retention of title
The delivered goods shall remain the property of MOIO until payment in full – in the case of payment by check or bill of exchange until redemption – of all claims arising from the contractual relationship with the customer.
The customer is obliged to treat the delivered goods with care; in particular, he is obliged to insure them adequately at replacement value at his own expense against damage by fire, water and theft. If maintenance and inspection work is required, the customer must carry this out in good time at his own expense.
In the event of conduct by the customer in breach of the contract, in particular non-payment of the due purchase price or rent, MOIO shall be entitled to withdraw from the contract in accordance with the statutory provisions or/and to demand surrender of the goods on the basis of retention of title. The demand for surrender does not at the same time include the declaration of withdrawal; MOIO is rather entitled to demand only the goods and to reserve the right of withdrawal. If the customer fails to pay the purchase price due, MOIO may only assert these rights if MOIO has previously set the customer a reasonable deadline for payment without success or if setting such a deadline is dispensable under the statutory provisions.
The customer is obliged to notify MOIO in writing without delay of any access to the goods delivered under retention of title and the rights assigned to MOIO.
MOIO shall be entitled to demand surrender of the items owned or co-owned by MOIO at any time if MOIO considers the fulfillment of the claims by the customer to be at risk or if the customer breaches the obligations incumbent upon it. The repossession of the goods by MOIO shall not constitute a rescission of the contract unless MOIO has expressly declared this in writing. The seizure of the purchased goods by MOIO shall always constitute a rescission of the contract. After taking back the goods, MOIO shall be entitled to realize them. The proceeds of such realization shall be set off against the customer’s liabilities – less reasonable realization costs.
The customer is obliged to take the necessary precautions and to issue all documents required by law so that the retention of title becomes effective or other security is provided or maintained in favor of MOIO.
If the realizable value of the securities provided to MOIO exceeds the value of the claims to be secured by more than 10%, MOIO shall, at the customer’s request, release securities at MOIO’s discretion to the extent that the realizable value of the securities exceeds the claims to be secured by more than 10%.
10. Interpretation, Applicable Law, Jurisdiction
“Working day” means any day except public holidays in Bavaria, Sunday and Saturday.
The legal relationship between MOIO and the customer shall be governed exclusively by German law.
The exclusive place of jurisdiction for all legal disputes between MOIO and the customer, including actions on checks and bills of exchange, shall be Nuremberg-Fürth. MOIO shall, however, be entitled to bring an action against the customer at the customer’s place of business.
11. Severability clause
If any provision in these GTC or any provision in any other agreement between the parties is or becomes invalid in whole or in part, this shall not affect the validity of all other provisions of these GTC or agreements. Ineffective parts are to be replaced by agreements which correspond to the contractual intent of the parties.