General Terms and Conditions
1. Scope of Appliction
1.1 The following terms and conditions shall apply to all deliveries and services, unless otherwise agreed in writing as a matter of priority. Deviating agreements shall apply in each case only to a specific contract and not to future contracts, unless expressly agreed otherwise in writing.
1.2 The General Terms and Conditions shall only apply to merchants if the contract is part of the operation of a commercial business as well as to legal entities under public law and public special funds pursuant to section 310 (1) BGB [German Civil Code].
1.3 These General Terms and Conditions of Auto Mobil Forschung Dresden GmbH (hereinafter AMFD) apply exclusively. Terms and conditions of the contractual partner do not apply, even if AMFD does not expressly contradict them. The same also applies if AMFD performs the service owed in the knowledge of conflicting general terms and conditions of the contractual partner.
2. Offers, Conclusion of Contract and Scope of Services
2.1 The services and/or work performances shall be provided in each case in accordance with the applicable statutory provisions, unless otherwise stipulated in these General Terms and Conditions.
2.2 AMFD is entitled to use the activity of third parties for the execution of orders, whereby AMFD always remains directly obligated to the customer itself.
2.3 Changes in the agreed scope of services shall be specified in writing.
2.4 AMFD is entitled to partial deliveries and partial services at any time, insofar as this is reasonable for the Contract Partner.
2.5 Dates, deadlines, dimensions, weights, simulation results, drawings, etc. are not binding unless they have been expressly confirmed in writing.
2.6 Information in brochures, advertising statements, statements in other publications and statements by third parties do not justify contractual performance, warranty or damage claims against AMFD from any point of view.
2.7 Assurances and guarantees for the quality of deliveries and services shall only be granted if expressly agreed in writing.
3. Cooperation Obligations of the Contractual Partner
3.1 The contractual partner shall ensure that all necessary documents and data are submitted to AMFD free of charge in due time, that AMFD is informed of all information and that AMFD is informed of all processes and circumstances concerning the project. This also applies to documents, processes and circumstances which only become known during the activity of AMFD.
3.2 The contractual partner shall furthermore ensure that the corresponding infrastructure, which is indispensable for the execution of the projects is provided. This includes free access to all premises, installations (hardware, software, networks, etc.) to the extent necessary for the proper performance of the services.
4. Prices and Terms of Payment
4.1 The services and work performances shall be invoiced at the fixed price stated in the offer or on a time and material basis after completion or acceptance of the services, unless otherwise agreed in writing. Estimated prices stated in the offer for services and works on a time and material basis are non-binding. Travel, accommodation and overnight expenses will be invoiced additionally.
4.2 The respective prices are quoted in EURO and are exclusive of VAT and exclusive of packaging, insurance, freight, assembly and other shipping and transport costs.
4.3 The statutory value added tax applicable at the time of performance shall be added to the agreed prices and shall be shown separately on the invoice.
4.4 Payments are to be made to the AMFD account specified in the invoice, stating the invoice number and the purpose of use, within 30 days of receipt of the invoice without deduction.
4.5 In the case of consideration of the purchaser’s change requests, the additional costs incurred as a result will be charged to the purchaser.
4.6 In the event of default of payment by the contractual partner, AMFD shall be entitled to charge default interest in the amount of 8% above the respective valid base interest rate of the European Central Bank. The contracting parties reserve the right to prove a lower or higher interest damage.
5. Offsetting and Retention
5.1 The contracting party shall only have the right to set-off if the set-off claim is undisputed or has been finally determined by a court of law.
5.2 The contractual partner shall only be entitled to exercise a right of retention insofar as its counterclaim is based on the same contractual relationship.
6.1 Work performances are to be accepted by the client. The handover of the service and the conformity with the agreed service description shall be recorded by the contracting party without delay. Any other proof of handover shall be incumbent upon the contracting parties. Insignificant deviations do not entitle the client to refuse acceptance.
6.2 The commissioning or use of the work or parts of the work shall be deemed to be acceptance.
6.3 The performance shall also be deemed to have been accepted on a regular basis unless the contractual partner declares acceptance after the expiry of two weeks from the handover and the contractual partner is obliged to accept the performance, as it were, in accordance with Section 640 BGB [German Civil Code].
7. Claims for Defects
7.1 The work performance shall comply with the agreed performance description and the agreed scope of performance and shall be provided to the customer free of material defects and defects of title.
7.2 AMFD assumes no liability with regard to the actual possibility of implementation of the project or its economic usability, insofar as the service rendered corresponds to that owed.
7.3 The contractual partner must inspect the goods immediately after receipt, insofar as this is feasible in the ordinary course of business, and if a defect is found, notify AMFD immediately in writing. If the contractual partner fails to make this notification, the goods shall be deemed to have been approved unless it is a defect that was not recognizable during the inspection. In all other respects sections 377 ff. HGB (German Commercial Code) shall apply.
7.4 In the event of a defect, AMFD shall choose between rectification of the defect or new delivery (subsequent performance). In the event that a subsequent delivery is to be made, AMFD must be granted a reasonable period for subsequent delivery. If the supplementary performance fails, the contractual partner has the right to demand a reduction in payment or cancellation of the contract at his discretion.
7.5 AMFD may refuse subsequent performance if this requires an effort that is grossly disproportionate to the contractual partner’s interest in performance. In this case the contractual partner can demand a reduction of the remuneration or withdraw from the contract.
7.6 Claims for defects shall not exist in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating resources or due to particular external influences which are not assumed under the contract.
7.7 If the contractual partner or third parties carry out modifications or repair work, there shall also be no claims for defects.
7.8 Claims for defects of quality and title shall become statute-barred after 12 months, unless longer periods are prescribed by law (e.g. sections 438, 479 , 634a BGB [German Civil Code]).
8. Work Results
8.1 AMFD remains the owner of the already existing copyrights, inventions and other intellectual property rights (old property rights).
8.2 Inventions made during the execution of an order by employees of AMFD and by third parties commissioned by AMFD belong to AMFD, unless otherwise agreed in writing. Apart from that AMFD grants rights of use also with regard to work results newly created within projects only with a separate contractual and written agreement.
8.3 Inventions made jointly by employees of AMFD and the Customer during the execution of an order, as well as industrial property rights granted for this purpose, shall be jointly owned by both contractual partners.
8.4 Liability for the infringement of the rights of third parties in the use of the documents or services of AMFD by the customer is not assumed, unless AMFD is aware of this at the time of handover of the services and has not informed the customer of this through gross negligence or intentionally.
8.5 Markings may not be removed, destroyed, defaced, altered or otherwise used.
9.1 The liability of AMFD extends to the application of scientific care and compliance with the recognized rules of technology.
9.2 AMFD is liable to the contractual partner according to the product liability law, due to injury to life, body or health, in other cases of intent, gross negligence, or assumption of guarantee. Furthermore, liability exists for the area of simple negligence if essential traffic obligations are violated. Material obligations are those whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the contractual partner may regularly rely. The claim for damages for the violation of essential contractual obligations is limited to the foreseeable damage typical for the contract.
9.3 In all other respects and beyond this, AMFD accepts no liability whatsoever, insofar as this is not mandatory by law. Liability for consequential damages is expressly not assumed.
9.4 The exclusion of liability also applies to the vicarious agents and employees of AMFD as well as to commissioned third parties of AMFD.
9.5 The contractual partner shall inform AMFD of all circumstances known to him that are relevant to a risk of damage, both in terms of reason and amount.
9.6 AMFD is liable for the damage caused by delay of the customer in case of work performances, if a final date agreed in the offer is exceeded exclusively for reasons lying with AMFD. The damage caused by delay is limited to the proven damage of the customer and the amount is limited to 0.5 per cent for each full week of delay, but in total not more than 5 per cent of the total remuneration for the part of the service not completed on time. The Client shall declare, as it were, whether it wishes to withdraw from the contract and/or demand damages in lieu of performance or insist on performance.
10.1 The contractual partners are obliged not to disclose the confidential information to third parties without the prior written consent of the disclosing party and to use it only for the purpose of the agreement. The information shall likewise not be used for own purposes. All necessary precautions will be taken to ensure that unauthorized persons cannot have access to this information.
10.2 Confidential information shall be deemed to be in each case that which is expressly designated as such and that which by its nature is deemed to be confidential.
10.3 Information shall not be classified as confidential if it can be proven that: – it was known to the contracting party prior to receipt, – it is generally known to the public, – it was made available to the public after receipt without the contracting party being responsible for this, or – it was lawfully made available to the contracting party by a third party. In the event of a breach of the obligations under this Agreement, the breaching Party shall bear the burden of proof for the existence of these facts.
10.4 The obligation arising from this provision shall apply to both contracting parties for a further 3 years after termination of the order.
10.5 The customer recognizes the necessity of scientific lectures and publications by AMFD or third parties commissioned by AMFD and will not unreasonably withhold any necessary consent.
10.6 Drawings, drafts or other templates provided by AMFD or its subcontractors shall remain the property of AMFD unless otherwise agreed in writing. They may not be used for purposes other than those agreed, reproduced or brought to the attention of third parties and are to be returned to AMFD immediately after fulfillment of the contract or upon termination of the project or upon request by AMFD.
11. The contractual partners shall process or use personal data of the respective other contractual partner only for contractually agreed purposes in compliance with the statutory provisions.
12.1 Unless otherwise agreed in writing, contracts may be terminated at any time with 8 weeks notice to the end of the quarter.
12.2 The terminationof contracts for good cause remains unaffected.
12.3 In case of termination AMFD will hand over the result achieved until then. The customer is obligated to compensate AMFD for the costs incurred up to the time the termination becomes effective, including a profit corresponding to the status of the work. In the case of fixed prices, settlement shall be made according to the status of the project in relation to the total work. In addition AMFD shall be entitled to remuneration of the liabilities of AMFD incurred up to the time of termination.
12.4 The written form requirement shall apply in each case.
13. Final Provisions
13.1 The transfer of rights and obligations from the contracts by the customer to third parties requires the prior written consent of AMFD.
13.2 The invalidity of individual provisions or its components shall not affect the validity of the remaining provisions.
13.3 The inclusion and interpretation of these General Terms and Conditions as well as the conclusion and interpretation of legal transactions with the contracting party shall be governed exclusively by the laws of the Federal Republic of Germany.
13.4 The place of jurisdiction for all disputes arising from this contract shall be Dresden.