General Terms and Conditions for development and consulting services of Alvier Mechatronics GmbH
§ 1 Validity
(1) All development and consulting services (hereinafter also referred to as "services") and related offers from Alvier Mechatronics GmbH (hereinafter also referred to as "Alvier") are provided exclusively based on these General Terms and Conditions. These are an integral part of all contracts that Alvier concludes with its contractual partners (hereinafter also referred to as "customer") for the services offered by Alvier. They shall also apply to all future services or offers to the customer, even if they are not separately agreed again.
(2) General Terms and conditions of the customer or third parties shall not apply, even if Alvier does not separately contradict their validity in individual cases. Even if Alvier refers to a letter that contains the terms and conditions of the customer or a third party or refers to them, this does not imply any agreement with the validity of those terms and conditions.
(3) The provision of additional services, in which Alvier is exceptionally to owe the customer a success or a certain quality of the service to be provided - and not just a development and consultancy service - always requires a separate development contract to be concluded with Alvier, clearly stating the customer's concrete specifications, and expressly excluding the validity of these General Terms and Conditions in writing. The mere description of Alvier's services in Alvier's offers is not sufficient for the acceptance of a development work contract. In case of doubt, these General Terms and Conditions shall apply.
§ 2 Offer and conclusion of the contract
(1) All offers made by Alvier are subject to change and non-binding, unless they are expressly marked as binding or contain a specific deadline for acceptance. Alvier may accept orders or commissions within fourteen (14) days of receipt.
(2) The legal relationship between Alvier and the customer is governed solely by the written contract including these General Terms and Conditions. He shall fully comply with all agreements between the contracting parties on the subject matter of the contract. Verbal commitments made by Alvier previous to the conclusion of this contract are not legally binding and verbal agreements between the contractors are replaced by the written contract, unless it is expressly stated in each case that they continue to apply with binding effect.
(3) Additions and amendments to the agreements made, including these General Terms and Conditions, must be made in writing to be effective. With the exception of managing directors or authorized signatories, the employees of Alvier are not entitled to make verbal agreements that deviate from the written agreement. The written form shall be deemed to have been complied with if the signed declaration is transmitted by telecommunication, in particular by fax or e-mail.
(4) Information provided by Alvier on the object of the service as well as representations of the same (e.g. drawings and illustrations) are only approximately authoritative, unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics of quality, but descriptions or identifications of the service. Deviations customary in the trade and deviations which are due to legal regulations or represent technical improvements are permissible insofar as they do not impair the usability for the contractually intended purpose.
§ 3 Implementation of the development and consulting services
(1) Alvier provides development and consultancy services for the (further) development of technologies with the greatest possible care and conscientiousness in accordance with the latest state of the art and proven technology. Alvier provides the services as a service and does not owe any success. Alvier will consider, by agreement and if appropriate in individual cases, general process descriptions and industry standards, as well as, if necessary, specific provisions, methods, application practices and other specifications of the customer. The customer must always ensure that such specifications and contents do not infringe the rights of third parties. The client must clarify on its own responsibility whether and to what extent the services provided by Alvier or work results or technologies developed based on the services infringe industrial property rights or other rights of third parties. It is not part of the services owed by Alvier that the services or work results or technologies based on the services are free of third-party rights, so that Alvier does not owe any property right checks.
(2) Alvier is in principle free to choose the place of performance. If the activity requires presence at a specific location, Alvier is obliged to provide the service there. Alvier is free in the allocation of its working hours. Certain times for the provision of services are only binding if this is expressly agreed with Alvier in writing. If necessary, for the provision of the service, Alvier will consult with the customer.
(3) Alvier may at any time involve third parties as sub-contractors for the provision of the services and, at its own discretion, pass on data and information from and in connection with the services and the order to them. If the customer does not agree to the use of subcontractors by Alvier, it must declare and clarify this expressly and in writing to Alvier in good time before Alvier is commissioned. In this case, Alvier is entitled at any time to refuse to provide services in part or in whole, without this giving rise to any claims on the part of the customer - irrespective of the legal grounds. Alvier is also free to draw up confidentiality agreements with subcontractors, so that the specifications of Alvier's customer in this respect can only be considered if this has been expressly agreed with Alvier in writing.
(4) The customer agrees that the documents, objects and other aids provided to Alvier can be modified, damaged or destroyed within the scope of the services. Alvier is not obliged to provide any replacement and/or compensation.
(5) If Alvier provides the customer with samples (e.g. prototypes), these samples are not quality-assured series products. The samples may be untested and manually modified and need not - without express agreement - meet any specifications. Even if specifications are agreed, the samples are not suitable for use in series products and are excluded from warranty and liability provisions. If such samples are used in series products, the customer bears sole responsibility for possible risks and damage. The customer shall also not be entitled to a specific sample, unless this is expressly agreed in advance in writing in a development work agreement with Alvier, stating the specifications.
§ 4 Obligations of the customer to cooperate
(1) The customer shall promote the services of Alvier by means of appropriate cooperative actions. It shall provide Alvier with the information and data required for this purpose and shall allow Alvier's employees access to its business premises to the required extent to its business hours and provide the necessary working materials and workplaces to an appropriate extent.
(2) The parties to the contract shall each appoint - in writing within fourteen (14) days of the placing of the order - a commercial (responsible for contractual matters, costs and payments) and a technical (responsible for technical questions and project management) contact person. Any changes must be notified immediately in writing.
(3) If the customer does not comply with its duties of cooperation and if Alvier is unable to complete the services in whole or in part within the agreed time for this reason, the period agreed for this shall be extended accordingly.
§ 5 Prices and Payment
(1) The prices are valid for the scope of services listed in the order confirmations. Additional or special services will be charged separately. The prices are in EUR plus the statutory value added tax.
(2) Invoice amounts are to be paid within thirty (30) days from the date of the invoice and provision of the service by Alvier - without any deductions - unless otherwise agreed in writing. The date of receipt by Alvier is decisive for the date of payment. Payment by cheque is excluded, unless it is agreed separately in individual cases. The customer shall be in default upon expiry of the payment period. During the period of default, interest shall be charged on the invoice amount at the statutory default interest rate applicable at the time. Alvier reserves the right to assert further damage caused by default. Our claim to the commercial interest on arrears (§ 353 of the German Commercial Code) against merchants shall remain unaffected.
(3) Offsetting against counterclaims of the customer or the retention of payments on account of such claims is only permissible insofar as the counterclaims are undisputed or have been established as final and absolute or result from the same order under which the relevant service was provided.
(4) Alvier is entitled to carry out or provide outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, it becomes aware of circumstances that are capable of substantially reducing the customer's creditworthiness and which jeopardize the payment of Alvier's outstanding claims by the customer from the respective contractual relationship (including from other individual orders to which the same framework agreement applies).
§ 6 Delivery and delivery time
(1) Deadlines and dates for services promised by Alvier shall always apply only as approximations, unless a fixed deadline or a fixed date has been expressly promised or agreed.
(2) Alvier can - without prejudice to its rights arising from default on the part of the customer - demand an extension of performance deadlines or a postponement of performance dates by the period in which the customer does not fulfil its contractual obligations towards Alvier.
(3) Alvier shall not be liable for the impossibility of performance or for delays in performance, insofar as these are caused by force majeure or other events that could not be foreseen at the time the contract was concluded (e.g. (e.g. operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, lawful lock-outs, shortage of workers, energy or raw materials, difficulties in procuring the necessary official permits, official measures or the failure of suppliers or third parties to deliver/provide services, or to do so correctly or on time), for which Alvier is not responsible. If such events make it considerably more difficult or impossible for Alvier to provide the service and the hindrance is not only of a temporary nature, Alvier shall be entitled to withdraw from the contract. In the event of temporary impediments, the performance deadlines shall be extended, or the performance dates postponed by the period of the impediment plus a reasonable start-up period. If the customer cannot reasonably be expected to accept the performance as a result of the delay, it may withdraw from the contract by means of an immediate written declaration to Alvier.
(4) If Alvier is in default with a service or if a service becomes impossible for it, for whatever reason, the liability of Alvier shall be limited to compensation for damages in accordance with §§ 9 and 10 of these General Terms and Conditions.
§ 7 Acceptance of services
(1) The parties shall only carry out a formal acceptance of the services in the event of separately agreed acceptance criteria and shall draw up and sign a joint protocol for this purpose.
(2) If separate acceptance criteria have been agreed in individual cases, the acceptance can be refused by the customer – exclusively in the event of significant defects in the services – until the defects have been rectified; Alvier is entitled and obliged to rectify the defects within a reasonable period. Otherwise, the customer must declare formal acceptance, if necessary, with a list of any defects that Alvier must rectify within a reasonable period.
§ 8 Intellectual Property, work results and granting of rights
(1) Alvier reserves the intellectual property rights to all offers, cost estimates and services it submits, including work results, prototypes and other samples as well as drawings, illustrations, calculations, brochures, catalogues, models and other documents and aids. The customer may not make this information, documents and items accessible to third parties, make them known, use them itself or through third parties or reproduce them without the express consent of Alvier. He must return these to Alvier in full at the latter's request and destroy any copies that may have been made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. Excepted from this is the storage of data made available electronically for the purpose of normal data back-up. "Intellectual property" includes all rights relating to inventions, patents, utility models, proposals for improvements, designs, supplementary protection certificates, copyrights and associated intellectual property rights, trademarks and comparable property rights existing worldwide, such as know-how and confidential information; in relation to Alvier, "know-how" includes in particular - but not limited to - knowledge gained through experience and experiments. "Work results" shall mean all works created by Alvier's activities under the agreement, in particular documents, sketches, presentations and drafts.
(2) Alvier remains the owner of all objects, materials, parts, tools or other items (hereinafter also referred to as "items") that are already the property of Alvier. If such items are processed, combined or mixed, Alvier shall receive co-ownership of the new product in the ratio of the value of the items to the value of the total product. The customer shall not be entitled to a right of retention to the items, for whatever reason.
(3) Unless otherwise regulated, all rights that arise during the execution of the contract shall be the property of Alvier. Beyond the provision of the services, Alvier shall not grant the customer any separate (protective) rights to the work results, unless this has been expressly agreed in writing between the parties. In this case, however, the right to apply for industrial property rights shall pass to the customer at the earliest upon full payment of the price to Alvier. If the customer waives an application, the customer shall notify Alvier of this in writing and grant Alvier the opportunity to apply for registration.
(4) Alvier shall retain the right to make free subsequent use of the services provided. The customer also expressly agrees that Alvier is entitled to use work results that are produced or used within the framework of the provision of services in other projects in which the customer itself is not involved.
§ 9 Warranty and third-party rights
(1) The statutory provisions shall apply to material defects and defects of title. Alvier does not warrant that Alvier's performance or the work results or technologies developed based on the performance are free from industrial property rights or copyrights of third parties. Each contracting party shall immediately notify the other contracting party in writing if claims are asserted against it for the infringement of such rights.
(2) In the event that the service infringes an industrial property right or copyright of a third party, Alvier shall not be obliged - without a separate written agreement - to modify or exchange the service in such a way that no more third-party rights are infringed.
(3) In accordance with § 3 of these General Terms and Conditions, the customer is solely responsible for ensuring that the use of the work results or the services provided by Alvier does not infringe any third-party rights and shall indemnify Alvier against any claims in this respect.
§ 10 Liability for damages due to fault
(1) In the event of a breach of contractual and non-contractual obligations, Alvier shall be liable in accordance with the statutory provisions, unless the General Terms and Conditions including the following provisions provide otherwise.
(2) Alvier shall be liable for damages – irrespective of the legal grounds – within the framework of liability for culpability in the event of intent and gross negligence. In the event of simple negligence, Alvier shall only be liable, subject to statutory limitations of liability (e.g. due care in its own affairs; minor breach of duty), (i) for damage resulting from injury to life, body or health, (ii) for damage resulting from the breach of a material contractual obligation (an obligation the fulfilment of which makes the proper execution of the contract possible in the first place and on the fulfilment of which the contractual partner regularly relies and may rely); in this case, however, Alvier's liability shall be limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from § 10 (2) shall also apply to breaches of duty by or in favor of persons whose fault Alvier is responsible for according to statutory regulations.
(4) Insofar as Alvier provides 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 shall be done free of charge and to the exclusion of any liability.
(5) The limitations of this § 10 do not apply to the liability of Alvier on account of willful conduct, for guaranteed characteristics, on account of injury to life, body or health or under the Product Liability Act.
(6) Alvier's liability is excluded under these provisions to the extent permitted by law.
§ 11 Confidentiality
(1) The client undertakes, during the term and after termination of the contract, to keep strictly confidential all confidential information and other business secrets of Alvier (hereinafter also referred to as "Confidential Information") that it has come to know in the course of the cooperation and to take appropriate confidentiality protection measures. "Confidential Information" shall always mean all information and documents of Alvier that are marked as confidential or are to be regarded as confidential due to the circumstances, i.e. in particular - and always without separate marking - all information about operational processes, business relationships and know-how as well as all work results.
(2) This obligation shall continue for a period of five (5) years after the termination of the contract.
(3) Such confidential information is excluded from this obligation,
a) which were demonstrably already known to the client at the time of conclusion of the contract or subsequently become known to the client by a third party, without this infringing a confidentiality agreement, legal regulations or official orders;
b) which are publicly known at the time of the conclusion of the contract or become publicly known 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 an authority. As far as permissible and possible, the contracting entity obliged to disclose shall inform Alvier in advance and give it the opportunity to take action against the disclosure.
(4) The customer shall only grant access to confidential information to those consultants who are subject to professional secrecy or who have previously been subject to obligations corresponding to the secrecy obligations of this contract. Furthermore, the parties will only disclose confidential information to those employees who must know it for the execution of this contract, and these employees will be obliged to maintain secrecy to the extent permitted by employment law for the time after their departure.
§ 12 Final Provisions
(1) If the customer is a merchant, a legal entity under public law or a special fund under public law or has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between Alvier and the customer shall be either Alvier Bad Dürkheim or the customer's registered office, at the discretion of Alvier. In these cases, however, Bad Dürkheim shall be the exclusive place of jurisdiction for legal actions against Alvier. Mandatory statutory provisions on exclusive places of jurisdiction remain unaffected by this provision.
(2) The relationship between Alvier and the customer shall be governed exclusively by 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) shall not apply.
(3) 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 in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions if they had been aware of the loophole.
Alvier Mechatronics GmbH
Version 2.3 September 2, 2020