MBmedien Group GmbH General Terms and Conditions.
§ 1 Applicability
The following General Terms and Conditions (GTCs) form part of every offer/quotation, contractual statement and contract issued and signed by
MBmedien Group GmbH
Europark Fichtenhain A 13a
47807 Krefeld, Germany
Phone: +49 (0)2151-5192-0
CEO: Stefan Lüschow, Stefanie Schroeter-Ahl
Krefeld District Court HRB 8932,
Sales Tax/VAT ID No. DE 192 325 611
These GTCs shall apply exclusively to any business relationship between MBmedien Group GmbH (hereafter referred to as MBmedien) and the relevant contracting party, in the version valid at the time of commissioning.
Subsidiary and alternative agreements must be in writing.
Any contracting-party GTCs that conflict with or differ from the following terms shall not apply. MBmedien’s GTCs also apply if MBmedien provides services or unconditionally accepts deliverables in the knowledge that the contracting party’s terms conflict with or differ from its own.
These GTCs are published on the Internet at www.mbmedien.group.
§ 2 Contract Conclusion
The contract with the client is only concluded once the assignment confirmation has been received by the client or once the assignment has been performed. MBmedien is basically entitled to reject any assignment without giving reasons. Employees of MBmedien are not authorised to enter into verbal agreements that go beyond the scope of written offers/quotations or provide further verbal assurances.
The prices stated in offers/quotations are maintained for a period of 30 days from the offer/quotation date, provided no alternative agreements have been entered into. Furthermore, the prices stated in the assignment confirmation are binding, and are net of the valid rate of statutory VAT in each case.
Where changes need to be made at the request of the contracting party following approval or acceptance, these shall be considered as additional deliverables to be billed separately.
§ 3 Obligations of the Contracting Party
The contracting party shall notify MBmedien in writing of all circumstances relevant to the contractual relationship and its execution without delay, in particular any change of name, company, residential or business address, telephone and fax number, e-mail address, account or bank details. The contracting party has an obligation to provide true and full personal details.
If the contracting party is provided with specific access data (hereafter referred to as data) to enable them to make use of MBmedien services, this data must not be disclosed to third parties. Where there are grounds for suspecting that unauthorised persons have gained knowledge of the contracting party’s data, the contracting party shall notify MBmedien without delay and request new data. The contracting party shall also be liable to pay any charges incurred as a result of unauthorised use of the data by third parties, unless they are not responsible for that unauthorised use.
If the contracting party purchases addresses from MBmedien for single or multiple use, then MBmedien does not assume liability for the legal, in particular the competition law-related permissibility of the intended use of these addresses. The client is solely responsible for this and shall release the address owner from any claims made by third parties.
Where the contracting party commissions MBmedien to send out mailshots to recipients specified by the contracting party (in particular by e-mail, fax or SMS), the contracting party is obliged to comply with the relevant statutory requirements. In particular the contracting party shall confirm when commissioning MBmedien that consent has been obtained from the recipients, provided this is a legal requirement. Should MBmedien have claims made against it by recipients as a result of sending out mailshots to those recipients specified by the contracting party, in particular because of unreasonable nuisance as per § 7 UWG (German Unfair Competition Act), the contracting party undertakes to release MBmedien from these claims.
Where the contracting party forwards documents to MBmedien to be sent out to specified recipients, the contracting party shall confirm that the content of these documents does not contravene any statutory requirements. Should MBmedien have claims made against it by recipients because of the content of the sent documents, the contracting party undertakes to release MBmedien from these claims. The same applies to the text of any e-mail to be sent.
If the contracting party forwards personal data (as per the GDPR) to MBmedien for the purposes of processing or use as e-mailshots, as well as for making contact by phone or post, the contracting party is obliged to conclude an order processing contract (as per Art. 28 Par. 3 GDPR) with MBmedien.
§ 4 Obligations of MBmedien
Unforeseen events and events for which MBmedien is not responsible, such as acts of God, transmission media failures or other disruptions over which MBmedien has no control, release MBmedien from its obligation of punctual performance for the duration of such events. In such cases any deadlines affected by such events shall be extended by the duration of the disruption. MBmedien shall notify the contracting party without delay of any non-availability and reimburse any payments already made by the contracting party, if the contracting party does not consent to MBmedien providing the contractually agreed deliverables at a later date.
Certain services are provided by MBmedien using transmission lines and systems made available by respective telecommunications providers. In the event that these lines or systems fail as a result of acts of God or other disruptions, over which neither the respective telecommunications provider nor MBmedien have any control, then MBmedien shall be released from its obligation of punctual performance. Any deadlines affected by such events shall be extended by the duration of the disruption. Once notified by the telecommunications provider, MBmedien shall in turn notify the contracting party without delay of any non-availability and reimburse any payments already made by the contracting party, if the contracting party does not consent to MBmedien providing the contractually agreed deliverables at a later date.
MBmedien shall assign any claims against respective telecommunications providers in connection with shortcomings in the transmission lines and systems made available by those respective telecommunications providers to contracting parties. Contracting parties that are entrepreneurs can only make a claim against MBmedien in connection with these shortcomings, if they were previously unsuccessful in taking legal action against the respective telecommunications provider. This does not apply if the claim against the respective telecommunications provider is unreasonable, because it has no prospects of being successful.
Lists of companies derived from the MBmedien company database, which have been segmented according to economic sector or industry and provided to the contracting party, are based solely on the information provided by those companies or through the Commercial Register in accordance with IS (Industrial Sector) code 2008. MBmedien does not accept any responsibility for the accuracy of this information.
§ 5 Delayed Delivery or Performance and Acceptance of Deliverables
Unless agreed otherwise, delivery or performance is deemed to be delayed if the contracting party has set a reasonable final deadline once a period of two weeks after the scheduled delivery date has elapsed and this new deadline has not been complied with. Any resultant liability is limited to premeditated or grossly negligent breaches of contract.
MBmedien is not responsible for delayed delivery or performance, which is attributable to acts of God or to events over which MBmedien has no control. Should performance or delivery not be possible by a reasonable final deadline, the contracting party is entitled to withdraw from the contract entirely or partially. In such a case claims for damages cannot be made.
Once the agreed service has been provided, the contracting party has two weeks in which to notify MBmedien of any complaints they may have about the service and set MBmedien a reasonable deadline to remedy these complaints. If this deadline passes without the contracting party contacting MBmedien again, then the service is deemed to have been accepted.
§ 6 Engagement of Service Providers and Vicarious Agents
MBmedien is entitled to commission third parties to provide the agreed services or parts thereof.
§ 7 Copyright
All copyright and ownership rights to drawings, diagrams and other documents pertaining to MBmedien offers/quotations are reserved. These rights shall not be transferred and neither shall third parties be given access to these rights.
§ 8 Liability
Any warranty claims that the contracting party may have are initially limited to supplementary performance by MBmedien. Should any supplementary performance go wrong, the contracting party is entitled at their discretion to demand a reduction in the fee to be paid or the annulment of the contract.
Unless otherwise specified below, further claims by the contracting party – for whatever legal reasons – shall be excluded. In particular MBmedien is not liable for the contracting party’s foregone profits or other pecuniary losses. Insofar as MBmedien’s contractual liability is excluded or limited, this also applies to the personal liability of its employees, representatives and vicarious agents.
The above-mentioned limitations of liability do not apply if any damage can be attributed to premeditation or gross negligence or to the negligent breach of obligations, the fulfilment of which facilitates due and proper performance of the contract in the first place and on compliance with which the contracting party routinely relies and can expect to rely, or if persons have been injured.
If MBmedien is negligently in breach of an obligation, the fulfilment of which facilitates due and proper performance of the contract in the first place and on compliance with which the contracting party routinely relies and can expect to rely, the obligation to pay compensation for damage to property is limited to foreseeable damage that may be typical for this type of contract.
The mandatory provisions of the German Product Liability Act remain unaffected.
§ 9 Prices and Payment Terms
Prices as per the pricelist or the relevant offer/quotation, which are valid at the date of contract conclusion, apply.
The contracting party may only offset any claims by MBmedien, if the counterclaim of the contracting party is legally enforceable or undisputed.
Invoices are due for payment within 10 working days from the invoice date without any deduction of cash discounts, unless other terms have been agreed in writing.
§ 10 Final Provisions, Applicable Law and Place of Jurisdiction
The place of performance for all services/deliverables is the commercial domicile of the service provider. The place of jurisdiction for all legal disputes arising from the legal relationship between MBmedien and the client is Krefeld in Germany, unless mandatory statutory provisions preclude this.
All previous versions of these General Terms & Conditions herewith cease to be valid.
Changes and amendments to as well as the annulment of this contract and the requirement of written form must be in writing.
The law of the Federal Republic of Germany applies exclusively to this contractual relationship. The UN Convention on Contracts for the International Sale of Goods does not apply.
Should specific terms of this contract be or become void or unenforceable, this does not affect the validity of the remaining terms. The contracting parties undertake to plug any possible gap with an arrangement that comes as close as possible to replicating the commercial spirit and purpose of the invalid term and of the contract.
Last update: April 10, 2019