General Terms and Conditions of We Robots GmbH
1.1. When dealing with enterprises, legal entities of public law, special funds under public law and research institutions (hereinafter referred to as the “customer”) the entire business relationship shall be subject to these general terms and conditions (hereinafter referred to as “GTCs”).
1.2. These GTCs shall apply exclusively, conflicting or deviating terms and conditions of the customer are objected. This shall also apply, if we unconditionally provide supply or service to the customer despite knowledge of such terms and conditions of the customer.
1.3. These GTSs shall also apply to any future business transactions with the customer, without any repeated separate reference being required.
2. CONCLUSION OF CONTRACT, COPYRIGHT AND PROPRIETARY RIGHT, PROVIDED DATA
2.1. Our offers are not legally binding, unless the offer is expressly called “binding”. The contract is established if we confirm the order of the customer. If deviating therefrom such order is preceded by a binding offer on our part, contract shall be established upon placing the order.
2.2 Quotes, drawings, illustrations, measures, weights and other performance data shall become part of the contract only, if reference is made thereto in our binding offer or in the offer confirmation. If such data become part of the contract the provisions of item 6.1 shall apply for deviations according to custom – subject to agreed guarantees-. General promotional blurbs independent from any particular business transaction are not binding.
2.3. Oral side agreements have not been made. Our employees are not entitled to make side agreements or contract supplements, unless such declarations are authorized in advance or afterwards by the management or the “Prokurist”(agent having signing authority.
2.4. We reserve title to and copyright on quotes, drawings, plannings, technical descriptions and explanations as well as on the know-how included therein- irrespective of the form thereof (documents, electronic files, CAD data). The named documentation shall be made available to third parties only after our prior written consent. If we are not awarded the order they shall be returned to us immediately upon request respectively are to be deleted and we shall be provided with a confirmation on the completeness of return/deletion upon request.
2.5. Technically caused production changes shall remain reserved as far as reasonable for the customer – unless adherence to such data had been agreed expressly. This shall apply accordingly to subsequent deliveries.
3. DELIVERY TIME, DELAYED DELIVERY, TRANSFER OF RISK, SCOPE OF DELIVERY
3.1. Partial deliveries shall be admissible to a reasonable extent.
3.2. Delivery times stated by us correspond to the status of our internal planning at the time they are given. Thus they are to be understood as approximate time designation only. If the customer wishes to agree on a delivery time binding for us, this has to be made clear by the customer when the contract is concluded. In this case we will confirm the delivery time as “binding” on the order confirmation.
3.3 Adherence to a delivery time stipulated as binding implies correct and prompt incoming deliveries received by us. We will inform the customer immediately on possible obstacles, no matter whether due to acts of god or the responsibility of our suppliers.
Furthermore adherence to binding delivery times implies complete and timely fulfillment of cooperative measures of the customer required for rendering services.
3.4. In case of default in performance on our side the customer shall be entitled to a compensation for delay amounting to 0.07% of the invoice value referring to the relevant service for each calender day, altogether however no more than up to 5% of the invoice value of the partial service. Additional claims exclusively referring to delay are excluded.
3.5. Upon notification that the goods are ready for collection at works risk passes to the customer. This also applies if we additionally pay the freight costs.
3.6. If we provide services or are to make software available the results of such services or the software can be made available to the customer also in electronic form, e.g. via e-mail.
3.7. The customer shall be entitled to be disclosed the object or source code only if this is explicitly agreed by contract.
4. PRICES AND PAYMENT TERMS, OFFSET, RETENTION, DISCOUNT
4.1. Prices are net prices in Euro plus statutory value added tax and unless otherwise agreed apply ex works/ex stock and exclusive of loading, transport, packaging, customs duties and other side costs.
4.2. In case of price increases of our suppliers we are entitled to pass on such costs to the customer at market prices. If the price increase exceeds 5% of the originally agreed price the customer is entitled to withdraw from the contract.
4.3. Retention of payments is permissible only on the basis of claims referring to the same delivery/ the same performance phase. Offsetting with counterclaims of the customer is admissible only with regard to accepted or legally enforceable counterclaims.
4.4. Upon conclusion of the contract – unless agreed differently – a down payment of 30% of the contract value is payable.
4.5. If we provide our services or deliveries in stages we are entitled to partial billing.
4.6. Invoices are payable within 28 days as of the invoice date.
4.7. If the customer is late in payment for more than 12 days all our other claims from other deliveries or services regarding the customer shall become due immediately notwithstanding any deviating maturity or respite agreements.
4.8. Deductions such as discounts are subject to explicit written agreement. Even in case of such agreement any deduction by the customer shall be admissible only if all other payment obligations of the customer have been met. Relevant for the adherence to the discount term is the imprinted date of invoice and receipt of payment by us under the condition that at least two bank working days lie between receipt of the invoice and expiry of the discount term.
5. RETENTION OF TITLE, SECURING, INSOLVENCY
5.1. We retain title to the delivery item until fulfillment of all claims due resulting from the entire business relationship with the customer.
5.2 Possible treatment and processing of the conditional goods is provided by us as producers pursuant to § 950 Civil Code without binding us. In case of processing, combination and commingling of conditional goods by the customer we are entitled to proportionate co-ownership in the new product in proportion to the invoice value of the conditional goods to the invoice value of the other goods used.
5.3. The customer shall inform us in case of a seizure or other impairment by third parties without delay. The customer shall bear all costs of annulment of the attachment.
5.4. If the realizable value of the securities provided for us exceeds our claims by altogether more than 20%, we will release the exceeding part.
5.5. Resale of the object of delivery is always subject to our express approval.
5.6. After fruitless expiration of the grace period and in case of a default in payment of more than 30 days we are entitled to direct redemption of the conditional goods, if withdrawal is declared simultaneously respectively if this is possible based on other statutory provisions. If the customer does not surrender the goods immediately, we are entitled to enter the premisses of the customer and take away the goods, during business hours and considering the other interests of the customer.
5.7. In case of a default in payment of more than 30 days, any other substantial deterioration of the financial situation of the customer, in particular in case of the institution of insolvency proceedings we may furthermore suspend further deliveries and demand payment in advance.
6. MATERIAL DEFECTS AND DEFECTS IN TITLE, LIABILITY
6.1. Defects shall be deemed to exist only in case of major deviations from the contractually agreed or usual condition. Mere deviations in appearance or other deviations not essentially impairing the applicability and functionality, do not entitle to claim warranty. This also applies to commercial surplus or short weights, reasonable deviations from technical consumption figures (e.g. battery capacity) as well as minor deviations in design, unless we guaranteed adherence to such parameters.
6.2. We are neither responsible for improper use nor for improper storage.
6.3. We are not responsible for suitability of our delivery respectively services rendered and for any particular purpose intended by the customer, unless such suitability has explicitly become part of the contract.
6.4. The customer shall check the goods immediately after receipt and shall notify possible evident defects immediately, no later however than within two workdays after receipt. Hidden defects shall be notified immediately after detection, no later however than within 2 workdays after detection, providing a qualified written description of the defect.
6.5. Notice of defects shall be excluded in any case after machining and processing, if the defect was detectable upon examination of goods in delivery condition.
6.6. Our drivers or outside carriers are not authorized to accept complaints regarding material defects. Complaints regarding the carriage of goods shall remain unaffected.
6.7. If complaints are unjustified we are entitled to request the customer to compensate us for expenses incurred (e.g. personnel costs, lawyers fees due to payment arrangement).
6.8. In case of material defects we at first are to be granted the opportunity to supplementary performance within reasonable time, either by remedy of the defect or by delivery of non-defective goods against return of the original goods. If supplementary performance fails finally more than two times regarding the same defect or regarding three different defects, the other rights regarding defects apply.
6.9. The place of warranty shall at our option either be the seat of our company or the place where the item according to our knowledge was first delivered. Regarding deliveries outside Germany the customer shall pay additional costs ex border.
6.10. We assume no responsibility for the fact that the delivered goods meet technical or other requirements, deviating from those applicable in the Federal Republic of Germany.
6.11. Our liability for damages no matter whether based on a contractual or extra-contractual legal basis in case of strict liability (e.g. product liability), injury of body, life or health, in case of guarantees given and during default complies with the statutory provisions.
6.12. In the course of other fault-based liability not covered by 6.11. we assume liability only for intent and gross negligence. For gross negligence liability is restricted to four times the original order value plus supplementary agreements, the above values however are to be determined based on the respective individual project (e.g. for framework agreements) where the damage results from.
6.13. By way of derogation from item 6.12. we shall be liable on legal basis also for simple negligence, if we violate an essential contractual obligation. In this case liability is limited to the amount of foreseeable damage typical of the contract, predictability however conforms to the information received. The original order value plus supplementary agreements of the respective project where the damage results from forms the upper limit.
6.14. Exclusion respectively limitation of liability also applies for our employees.
6.15. Claims for material defects become time-barred within one year, except for deliveries and services for buildings as well as for claims for damages and liability due to intent or gross negligence, malice, injury of body, life and health as well as for strict liability. Limitation of the claims exempt from the one-year-period of limitation according to item 6.15. are subject to statutory provisions.
7. AUTHORIZATION OF REALIZATION, RELEASE
7.1. We remain the owners of any title to the work results arising, no matter whether they are patentable or not, unless agreed otherwise in a separate contract.
7.2. If we hand over software or technical know-how for use – except when otherwise stipulated – only a non-exclusive, non-transferable license for the agreed period is granted.
7.3. In any case exploitation rights are dependent on correct payment of the agreed compensation.
7.4. The utilization right is always restricted to the country where the delivered object was first delivered to, as far as not agreed differently.
7.5. If we carry out works according to the specifications of the customer, we only have to ensure strict application of these specifications – except when stipulated differently by individual contract -. We do not warrant that our services in case of strict compliance with the specifications of the customer do not violate possible proprietary rights of third parties. If providing the services violates any intellectual property right of third parties and if we are held liable therefore, the customer shall indemnify us and reimburse any expenses and compensate us for damage arising in connection with this claim (e.g. staff, cost of legal representation etc.).
7.6. Prior to hand over to the customer the results of our solutions compiled during our services will not be examined with respect to any possible conflicts with intellectual property rights of third parties in the course of later application of this solution by the customer, unless this was agreed separately subject to a charge. This shall also apply for the use of goods delivered by us for a purpose intended by the customer, which we had not been informed on. If we are held liable with this respect by third parties the customer shall indemnify us.
8. NONDISCLOSURE, PROTECTION AGAINST ENTICEMENT, CONTRACTUAL PENALTY
8.1. The customer shall not disclose to third parties or otherwise use any know-how or other trade or business secrets pursuant to § 17 Unfair Competition Act provided by us or which he got to know in the course of the implementation of the contract or the project.
8.2. If the customer culpably violates the obligation under item 8.1. a contractual penalty assessed based on the value of the information disclosed or used at least however to the amount of EUR 5,000.– up to EUR 100,000.– shall become due for payment. We will assess the amount of the contractual penalty according to the gravity of the breach in individual cases according to reasonably exercised discretion. If justness of exercising discretion is contested the competent court shall alternatively assess the amount. Enforcement of claims for damages taking contractual penalty into account shall remain unaffected.
8.3. The customer undertakes not to entice away, employ in the same or any similar function or to otherwise directly or indirectly employ any of our employees, irrespective whether on own account or on account of the employee or to acquire his/her work performance in any other way or to support such attempts of third parties during the term of the contract and for a period of 12 months after the end of the contract period. If this obligation is breached a lump sum as liquidated damages amounting to EUR 10,000.– shall become due for payment. It is left to the customer to prove that no or only slight damage was caused.
9.1. Regarding publications in connection with deliveries or services of We Robots the customer shall conveniently make reference to the deliveries/services of We Robots, unless We Robots objected thereto in advance.
9.2. We Robots is entitled to publicly name current or future development projects as well as to use completed business transactions with the customer as a reference.
10. FUNDED PROJECTS, COLLABORATIVE PROJECTS
The contract shall be effective under civil law irrespective whether public support funds can be raised for the project by the customer or not. If we support the customer in applying for funded projects we are entitled to request adequate consideration therefore – considering subsidy law.
11.1. We save the data of our business relationships electronically.
11.2. The customer may assign claims against us with our consent only.
11.3. This contract shall be governed by German law excluding CISG (UN-Sales Law).
11.4. The place of performance for the obligations of the customer as well as for our obligations shall be the seat of our company.
11.5. For all present and future claims resulting from the business relationship including bills and check claims the exclusive place of jurisdiction shall be Ilmenau, if the customer is an enterprise, a legal entity or a special public fund. This place of jurisdiction shall also apply, if the customer has no general place of jurisdiction within the Federal Republic of Germany or if his place of residence or place of habitual abode is not known at the time the action is brought. By way of derogation from the above-mentioned we are also entitled to pursue our rights at the seat of the customer or before any other competent court.
11.6. Should one or more provisions be invalid the validity of the other provisions of the contract shall not be affected. If the invalid provision is textually definable, so that the valid part on its own terms remains clear when the invalid part is canceled, the valid part shall remain in effect, unless this would lead to a content contradicting the intended purpose due to invalidity of the other part.
Status: 01.01.2014 | Until further notice