General terms and conditions
for development services of Alvier Mechatronics GmbH and Alvier Mechatronics AB
§ 1 General
(1) All development services (hereinafter also referred to as "services") and offers for such services of Alvier Mechatronics GmbH or Alvier Mechatronics AB (both hereinafter also referred to as "Alvier Mechatronics") are exclusively based on these General Terms and Conditions (hereinafter referred to as "GTC").
(2) The GTC are an integral part of all contracts of Alvier Mechatronics for development services; they also apply to contract amendments and supplements as well as to all future transactions. The version valid at the time of the conclusion of the contract is authoritative. The GTC apply only to entrepreneurs, legal entities under public law and special funds under public law.
(3) Terms and conditions of the client or third parties do not apply, even if Alvier Mechatronics does not contradict their validity in the individual case separately. Even if Alvier Mechatronics refers to a letter, which contains terms and conditions of the client or a third party or refers to such, this does not mean an agreement with the validity of those terms and conditions.
(4) Individual agreements and specifications in our order confirmation have priority over these GTC. The same applies in particular insofar as Alvier Mechatronics undertakes to produce a development according to concrete specifications of the client ("prototype"). The specifications and any further requirements for the development will be agreed in writing in a separate contract.
(5) With regard to the information obligations according to the EU-DGPR, reference is made to the data privacy statement, which can be found at www.hoganas.com/en/privacy-policy/.
§ 2 Offer and conclusion of contract
(1) All offers of Alvier Mechatronics are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. Alvier Mechatronics can accept orders within fourteen (14) days after receipt. The acceptance takes place by explanation in text form.
(2) Solely authoritative for the legal relationship between Alvier Mechatronics and the client is the written contract including these GTC. This reflects all agreements between the contracting parties completely. Verbal agreements are only legally binding if they are confirmed in writing by Alvier Mechatronics.
(3) Additions and amendments to the agreements made, including these GTC, must be in writing to be effective. With the exception of managing directors or authorized signatories, the employees of Alvier Mechatronics are not authorized to make verbal agreements that deviate from the written agreement.
(4) In order to comply with the written form required in these GTC, transmission by telecommunication, in particular by fax or by e-mail, shall be sufficient, provided that a copy of the signed declaration is transmitted.
(5) Information of Alvier Mechatronics to the object of the achievement as well as representations of the same (e.g. drawings and illustrations) are only approximately authoritative, as far as the usability for the contractually intended purpose does not presuppose an exact agreement or the adherence to the information or representations were agreed upon explicitly in writing. They are not guaranteed quality features, but descriptions or identifications of the performance. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements are permissible insofar as they do not impair the usability for the contractually intended purpose.
§ 3 Execution of orders
(1) Alvier Mechatronics provides development services for the (further) development of technologies with the greatest possible care and conscientiousness according to the latest state of proven technology, whereby the state of the art at the time of the conclusion of the contract is binding. Alvier Mechatronics will take into account, after consultation and if reasonable in the individual case, general process descriptions and industry standards as well as, if applicable, specific regulations, methods, application practices and other specifications of the client, provided that these specifications have been submitted to Alvier Mechatronics in writing in due time before execution. The client must always ensure that corresponding specifications and contents do not violate any rights of third parties. The client has to clarify on his own responsibility whether and to what extent the services of Alvier Mechatronics or work results or technologies developed on the basis of the services violate industrial property rights or other rights of third parties. Alvier Mechatronics is not responsible for the examination of the industrial property rights of the developed services.
(2) Alvier Mechatronics is in principle free in the choice of the place of performance. If the activity requires the presence at a certain place and this place is agreed upon as place of performance, Alvier Mechatronics is obliged to perform there. Alvier Mechatronics is free in the arrangement of its working hours. Specific times for the performance of services are only binding if this is expressly agreed in writing with Alvier Mechatronics. If necessary for the performance of the service, Alvier Mechatronics will coordinate with the client.
(3) Alvier Mechatronics may at any time engage third parties as subcontractors for the performance of the services and at its own discretion, pass on data and information from and in connection with the services and the assignment to them. If the client does not agree with the involvement of subcontractors by Alvier Mechatronics, he has to declare and clarify this explicitly and in writing to Alvier Mechatronics in due time before the assignment of Alvier Mechatronics, stating the reason. In this case Alvier Mechatronics is entitled at any time to refuse the provision of services in part or in total, without this giving rise to any claims on the part of the client, irrespective of the legal grounds. Alvier Mechatronics is also free in the design of non-disclosure agreements with subcontractors, so that also specifications of the client in this respect are to be taken into account by Alvier Mechatronics only if this has been expressly agreed with Alvier Mechatronics in writing.
(4) The client agrees that the documents, objects and other aids provided to Alvier Mechatronics may be modified, damaged or destroyed in the course of the services. Alvier Mechatronics has no replacement and/or compensation to provide.
(5) If Alvier Mechatronics provides the client with prototypes as a work result, these results are not quality-assured series products. The work result may be untested and manually modified and need not - without express agreement - comply with any specifications. Even if specifications are agreed upon, the work result is not suitable for use in series products and is exempt from warranty and liability provisions. When using such work results in serial products, the client bears sole responsibility for possible risks and damages. The client also has no right to a specific work result, unless this is expressly agreed in advance in writing by means of a development work agreement with Alvier Mechatronics, stating the specifications.
§ 4 Obligations of the Customer to Cooperate
(1) The client has to support the services of Alvier Mechatronics by appropriate cooperation. He will in particular provide Alvier Mechatronics with the necessary information and data for this purpose as well as allow the employees of Alvier Mechatronics access to his business premises to the necessary extent during his business hours and provide the necessary working materials and workplaces to a reasonable extent and in a form customary in the trade. Information and data provided by the client will only be checked for plausibility.
(2) The contracting parties shall each appoint in writing, within fourteen (14) days after placing the order, a commercial contact person (responsible for contractual matters, costs and payments) and a technical contact person (responsible for technical matters and project management). Any changes shall be notified in writing without delay.
(3) If the client does not comply with his acts of cooperation and if Alvier Mechatronics cannot complete the services in whole or in part within the agreed time for this reason, the time period agreed for this purpose will be extended appropriately.
§ 5 Prices and payment
(1) The prices shall apply to the scope of services listed in the order confirmations. Additional or special services shall be charged separately. The prices are in EUR or SEK plus the statutory value added tax applicable at the time of the contract.
(2) Invoice amounts are to be paid within thirty (30) days from the date of invoice and performance of the service by Alvier Mechatronics - without any deduction - by bank transfer, unless otherwise agreed in writing. The date of receipt by Alvier Mechatronics is decisive for the date of payment. With the expiration of the payment term the client is in default. During the period of default, the invoice amount is subject to interest at the applicable statutory default interest rate. Alvier Mechatronics reserves the right to claim further damage caused by delay. Towards merchants the claim of Alvier Mechatronics to the commercial due date interest (§ 353 HGB) remains unaffected.
(3) Offsetting against counterclaims of the Customer or the retention of payments due to such claims shall only be permissible to the extent that the counterclaims are undisputed or have become res judicata and arise from the same order under which the relevant performance was rendered.
(4) Alvier Mechatronics is entitled to perform or render outstanding deliveries or services only against advance payment if, after the conclusion of the contract, circumstances become known to Alvier Mechatronics which are likely to substantially reduce the creditworthiness of the client and which jeopardize the payment of Alvier Mechatronics' outstanding claims by the client arising from the respective contractual relationship (including from other individual orders to which the same framework agreement applies). Facts that call into question the creditworthiness of the client in the aforementioned sense are, in particular, seizures or other compulsory execution measures against the assets of the client or the application for or opening of insolvency proceedings. If the client does not make such an advance payment, Alvier Mechatronics has the right to withdraw from the contract. Furthermore, all invoices owed will become due immediately.
§ 6 Delivery and delivery time
(1) Deadlines and dates for services promised by Alvier Mechatronics are always only approximate, unless a deadline or date has been expressly promised or agreed upon in a contractually binding manner. Otherwise dates or deadlines are only approximate values, which are estimated by Alvier Mechatronics to the best of its knowledge and presuppose a scheduled cooperation of the client.
(2) If Alvier Mechatronics recognizes that the processing time is not sufficient, Alvier Mechatronics will inform the client in writing. In this case the parties will agree on an extension of the processing time. If the delay is based on causes from the sphere of the client, the processing time is automatically extended by the period of the hindrance plus an appropriate start-up period.
(2) Alvier Mechatronics can - without prejudice to its rights arising from default of the client - demand from the client an extension of performance deadlines or a postponement of performance dates by the period in which the client does not fulfill its contractual obligations towards Alvier Mechatronics.
(3) Alvier Mechatronics is not liable for impossibility of the achievement or for achievement delays, as far as these are caused by higher force or other, at the time of the conclusion of the contract not foreseeable events (in particular operational disturbances of all kinds, difficulties in the material or energy procurement, transport delays, strikes, lawful lockouts, shortage of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the failure of suppliers/third parties to deliver/service correctly or on time) for which Alvier Mechatronics is not responsible. If such events make the performance of Alvier Mechatronics substantially more difficult or impossible and the hindrance is not only of temporary duration, Alvier Mechatronics is entitled to withdraw from the contract.
(4) If Alvier Mechatronics is in delay with a performance or if a performance becomes impossible for whatever reason, the liability of Alvier Mechatronics is limited to compensation according to §§ 9 and 10 of these general terms and conditions. The occurrence of the delay by Alvier Mechatronics is determined according to the legal regulations. In any case a prior reminder of the client is required.
§ 7 Acceptance of services
(1) The parties will conduct a formal acceptance of the services. For this purpose, Alvier Mechatronics will prepare a written presentation of the results and send it to the contractor with the request for approval. If the client does not expressly reject the work result within a period of 14 days from the date of sending, the work result is deemed to be accepted.
(2) The acceptance can be refused by the client only in case of essential deficiencies of the services until the deficiencies are removed; Alvier Mechatronics is entitled and obliged to remove the deficiencies within a reasonable period of time. Otherwise the client has to declare the formal acceptance, if necessary with listing of possible defects, which have to be removed by Alvier Mechatronics within an appropriate period.
(3) Alvier Mechatronics retains ownership of the services rendered until receipt of all payments from the business relationship with the client. The client may neither pledge nor transfer by way of security the performance subject to retention of title and must immediately notify Alvier Mechatronics of any seizure that has taken place at the instigation of a third party.
§ 8 Intellectual property, work results and granting of rights
(1) All intellectual property rights and know-how, including testing and validation methods, owned or controlled by Alvier Mechatronics or developed and/or acquired by Alvier Mechatronics independently of the assignment at the time of the conclusion of the assignment of Alvier Mechatronics by the client, are the exclusive property of Alvier Mechatronics. Alvier Mechatronics transfers the intellectual property of the work results arising from the performance of the service to the client upon payment of the agreed remuneration. "Intellectual Property" includes all rights relating to - registered or unregistered - inventions, patents, utility models, improvement proposals, designs, supplementary protection certificates, copyrights and related intellectual property rights, trademarks and comparable property rights existing worldwide, as well as know-how and confidential information; in relation to Alvier Mechatronics, "know-how" includes in particular - but is not limited to - knowledge gained through experience and trials. "Work Results" means all works created by Alvier Mechatronics activities under the Agreement, including but not limited to documents, sketches, presentations and drafts.
(2) Alvier Mechatronics remains the owner of all objects, materials, parts, tools or other things (hereinafter also referred to as "things") that are already the property of Alvier Mechatronics. In case of processing, combination, mixing of such items, Alvier Mechatronics will receive co-ownership of the new product in proportion of the value of the items to the value of the total product. The client is not entitled to a right of retention of the goods, irrespective of the reason.
(3) The right to apply for an industrial property right is transferred to the client at the earliest with the complete payment of the price to Alvier Mechatronics. If the client renounces an application, the client will inform Alvier Mechatronics of this in writing and grant Alvier Mechatronics the possibility of the application.
(4) Alvier Mechatronics retains the right to free subsequent use of the services rendered. The client also expressly agrees that Alvier Mechatronics is entitled to use work results, which are produced or used in the context of the service provision, in other projects in which the client itself is not involved.
§ 9 Warranty and third party rights
(1) The statutory provisions shall apply to material defects and defects of title, provided that the client has complied with its duty to inspect and give notice of defects in accordance with Section 377 of the German Commercial Code (HGB) without delay, properly and in writing. Alvier Mechatronics does not warrant that Alvier Mechatronics s performance or the work results or technologies developed on the basis of the performance are free of industrial property rights or copyrights of third parties. Each contracting party shall notify the other contracting party in writing without delay if claims are asserted against it for infringement of such rights.
(2) In the event that the service infringes an industrial property right or copyright of a third party, Alvier Mechatronics - without a separate written agreement - is not obliged to modify or replace the service in such a way that no third party rights are infringed anymore. The client is responsible for compliance with third party rights. If Alvier Mechatronics is held liable by a third party for alleged infringement of intellectual property rights, the client is obliged to indemnify Alvier Mechatronics upon first request. The indemnification obligation refers to all costs necessarily incurred by Alvier Mechatronics, such as damages, legal fees and other defense costs.
(3) Pursuant to § 3 of the GTC, the client is solely responsible for ensuring that the use of Alvier Mechatronics´ work results or services provided does not infringe any third-party rights, and indemnifies Alvier Mechatronics against any third-party claims in this regard.
§ 10 Liability for damages due to fault
(1) Unless otherwise stipulated in these GTC including the following provisions, Alvier Mechatronics shall be liable for a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
(2) Alvier Mechatronics is liable for damages - regardless of the legal grounds - in case of intent and gross negligence. In the case of simple negligence, Alvier Mechatronics is liable, subject to legal limitations of liability (e.g. care in own affairs; insignificant breach of duty), only (i) for damages resulting from injury to life, body or health, (ii) for damages resulting from the breach of an essential contractual obligation (obligation, the fulfillment of which makes the proper performance of the contract possible in the first place and on the observance of which the contractual partner regularly relies and may rely); in this case, however, the liability of Alvier Mechatronics is limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from § 10 (2) also apply to breaches of duty by or in favor of persons whose fault Alvier Mechatronics is responsible for according to legal regulations.
(4) As far as Alvier Mechatronics gives technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by it, this is done free of charge and under exclusion of any liability.
(5) The restrictions of this § 10 do not apply to the liability of Alvier Mechatronics because of deliberate behavior, for guaranteed characteristics, because of injury of the life, the body or the health or after the product liability law.
(6) Any further liability of Alvier Mechatronics is excluded as far as legally permissible.
§ 11 Confidentiality
(1) During the term of the contract and for a period of five years after its termination, the client undertakes to keep strictly confidential all confidential information and other business secrets of Alvier Mechatronics (hereinafter also referred to as "Confidential Information") that have come to its knowledge in the course of the cooperation and to take appropriate measures to protect confidentiality. "Confidential Information" in this context always means all information and documents of Alvier Mechatronics which are marked as confidential or which are to be regarded as confidential due to the circumstances, i.e. in particular - and always also without separate marking - all information about operational processes, business relations and know-how as well as all work results.
(2) Such confidential information shall be exempt from this obligation,
- which were demonstrably already known to the Customer at the time of conclusion of the contract or subsequently become known to the Customer from a third party, without any confidentiality agreement, statutory provisions or official orders being violated as a result;
- which are public knowledge at the time of the conclusion of the contract or are made public thereafter, unless this is due to a breach of this contract;
c) which must be disclosed due to legal obligations or by order of a court or authority. As far as permissible and possible, the client obliged to disclose will inform Alvier Mechatronics in advance and give the opportunity to take action against the disclosure.
(4) The Client shall only grant access to confidential information to those consultants who are subject to professional secrecy or with whom confidentiality was previously agreed in writing. Furthermore, the parties shall only disclose confidential information to those employees who need to know it for the performance of this contract and shall also oblige these employees to maintain confidentiality to the extent permissible under employment law for the time after their departure.
§ 12 Final provision
(1) The place of performance is the registered office of the Alvier Mechatronics company concluding the contract. In the case of Alvier Mechatronics GmbH this is Goslar, in the case of Alvier Mechatronics AB this is Höganäs.
(2) The place of jurisdiction for any disputes arising from the business relationship between Alvier Mechatronics and the client is, at the discretion of Alvier Mechatronics, Hanover, Helsingborg (Sweden) or the registered office of the client. However, in these cases Goslar is the exclusive place of jurisdiction for legal actions against Alvier Mechatronics. Mandatory legal provisions concerning exclusive places of jurisdiction remain unaffected by this provision.
(3) The relations between Alvier Mechatronics and the client are exclusively subject to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11.4.1980 (CISG) does not apply.
(4) Alvier Mechatronics is permitted to transfer contractual rights and obligations to subcontractors.
(5) Insofar as the contract or these General Terms and Conditions contain loopholes, those legally effective provisions shall be deemed to have been agreed to fill these loopholes which the contracting parties would have agreed to in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions if they had known about the loophole.
Alvier Mechatronics GmbH / Alvier Mechatronics AB
August 28, 2023