General Terms and Conditions of tech-solute GmbH for development contracts
1.1 The General Terms and Conditions (GTC) of tech-solute GmbH (hereinafter referred to as “tech-solute”) shall apply to all offers, orders, deliveries and services relating to the development, construction and delivery of machines or other technical equipment (hereinafter referred to as “services”) which we render to our customers.
1.2 These GTC apply exclusively to companies (§ 14 BGB), legal entities under public law and special funds under public law
1.3 Terms and Conditions of our customers which conflict with or deviate from tech-solute’s General Terms and Conditions do not apply, even if we do not lodge an objection to them. The unconditional acceptance or execution of an order does not make them part of the contract.
1.4 Individual written agreements made in individual cases between the client and tech-solute or written agreements made in accordance with the order confirmation take precedence over the following General Terms and Conditions.
2. Conclusion of the agreement
2.1 2.1 We provide the customer with an individual, non-binding cost estimate, which we send to the customer in written form. The customer may place an order with us by returning the signed cost estimate or by sending his order by post, fax or e-mail. The binding period of the offer is stated in the cost estimate. By placing an order, the customer makes a binding declaration of his offer of contract, which we can accept within 10 working days. The contract is concluded upon receipt of our order confirmation by the customer. The order confirmation can be sent by post, fax or e-mail.
2.2 Subject and extent of our services shall be determined exclusively by the order confirmation. Partial services are possible.
2.3 Modifications of the order require a written agreement or a written confirmation by tech-solute.
3. Subject of our services; performance period; services of third parties
3.1 The subject of our services is the performance of research and development studies, the provision of technical consulting services for companies in the mechanical and plant engineering sector, in particular by developing innovative product ideas and their constructive implementation right up to the product prototype (hereinafter referred to as “development order”).
3.2If the subject of the order is the design and production of objects or products, only prototypes without suitability for series production are owed as development results. The further development of the product to market/series readiness is not the subject of this order, unless otherwise agreed in individual cases.
3.3 Insofar as the design and production of a series product is agreed in individual cases, the requirements for series readiness are determined by the specification sheet and the order confirmation. Unless otherwise agreed in an individual case, the subject of our order is merely the constructive development of the series product. The registration and implementation of CE marking, TÜV/UL certification or of certifications prescribed by product safety law (such as EMC conformity, etc.) is the responsibility of the customer.
3.4 Insofar as the design and production of a special machine is agreed in individual cases, the requirements for commissioning shall be determined by the specification sheet and the order confirmation. Unless otherwise agreed in the individual case, the subject of our order is merely the design of the special machine. The registration and implementation of CE marking, TÜV/UL certification or of certifications prescribed by product safety law (such as EMC conformity, etc.) is the responsibility of the customer.
3.5 Delivery is ex works (EXW / „ex works“ tech-solute GmbH, Werner-von Siemens-Straße 2-6, Building 5137 c, 76646 Bruchsal, Germany). Construction and assembly are not part of our services, unless otherwise agreed in individual cases.
3.6 Insofar as not stated as a lump-sum price, the information on labour costs stated in our cost estimates shall only represent the approximate values determined. The amount of work on which the final invoice is based shall depend on the services actually rendered or the number of hours actually worked.
3.7 Delivery and performance dates stated in our cost estimates and order confirmations are non-binding, unless expressly agreed otherwise in individual cases in written form.
3.8 If a binding delivery or service date is agreed on in an individual case, the timely performance of the service shall be subject to the customer fulfilling their obligations to cooperate in accordance with Clause 5 in good time.
3.9 3.9 If we are temporarily prevented by circumstances for which we are not responsible from rendering the service owed by us in a timely manner – on an agreed delivery date or within an agreed delivery period – in particular due to operational disruptions, strikes, lockouts, official decrees and cases of force majeure for which we are not responsible, we shall be released from our obligation to render the service for the duration of the disruption and to the extent of its effects. The agreed performance period shall be extended by the duration of the impediment to performance. If the provision of services is delayed by more than one month, both we and the customer shall be entitled to withdraw from the contract with regard to the service concerned.
3.10 If the customer is in default of acceptance, we shall be entitled to have the resulting damage, including any additional expenses, reimbursed.
3.11If the customer instructs us to agree on the provision of services with third parties in his name or in our own name at the expense of the customer, we shall only act as intermediary for the customer and coordinate the provision of services by the third party with our services. The provision of services by the third party is not part of our services.
4. Subject of the development order; development results; milestones; change request
4.1 The subject matter of the development order shall be the technical development and constructive implementation of a product idea up to a product prototype for the customer as contract development by tech-solute, unless otherwise agreed in individual cases.
4.2 The details of the research services to be provided by us or the development results to be achieved are elaborated together with the client and recorded by us in a requirement specification on the basis of the specifications sheet to be submitted by the customer.
4.3 The subject and scope of the development order shall be determined exclusively in accordance with the order confirmation and the requirements specification.
4.4 The timetable for the execution of the development order is non-binding, unless otherwise agreed in the individual case.
4.5 In milestone meetings, we determine the further steps of the development contract in close coordination with the customer.
4.6 At the respective milestone meetings, we present the development results and the underlying technical data to the customer in the form of presentations and hand them over to the customer. After completion of the development order, all (interim) results of the individual work packages are recorded in an overall project documentation. Results rejected in agreement with the customer are documented including a justification.
4.7 Models and prototypes created for the purpose of validation are handed over to the customer after completion of the development order.
4.8 If the customer requests changes or extensions to the order after conclusion of the contract (change request), the additional costs incurred for this are to be remunerated separately. In this case, after approval by the customer, we shall carry out a scope analysis to determine the effects of the change request (in particular extended project duration and additional costs).
4.9 The costs for the scope analysis of the change request will be invoiced separately to the customer.
4.10On the basia of the scope analysis we will create a an supplimentary non-binding cost estimate for the change request which we will send the customer in written form. The customer may place his order with us on the basis of this supplementary cost estimate by signing and returning it by post, fax or e-mail within 14 days. By placing the order, the customer bindingly declares his supplementary contractual offer, which we can accept within 10 working days. The contract for the supplementary services requested by the customer shall be concluded upon receipt of our order confirmation by the customer. The order confirmation can be sent by post, fax or e-mail.
5. Duties of customer to cooperate
5.1 The customer must support tech-solute’s services at all times by active cooperation.
5.2 The customer shall provide us on request with the information required for the performance of our services, in particular project-relevant information on the state of the art, technical drawings, documents and data as well as models and prototypes. Insofar as this is necessary for the performance of our services, the customer shall grant us access to his business premises during business hours by prior agreement.
5.3 Unless otherwise agreed, the customer is obliged to specify the requirements for the product to be developed by us in a specification sheet. Based on this specification sheet we (tech-solute and the customer) determine the details of the research services to be provided by us or the development results to be achieved. We record these in a requirements specification.
5.4 The development of a product idea up to a prototype or series product must follow the development steps specified in the order confirmation.
5.5 Written consent from tech-solute is required prior to the customer starting series production of a product developed by tech-solute for a pre-series, pilot series or series production for placing the product on the market.
5.6 The customer shall name at least one contact person for the duration of the project who will be available to answer questions during the duration of the project. This contact person possesses company- and technology-specific knowledge.
5.7 The customer is obligated to participate in project meetings and workshops by sending persons who have professional and strategic decision-making authority.
5.8 We determine a suitable project manager at tech-solute for the customer’s project, who is the main contact person for the customer. who is the main contact person for the customer. Depending on the tasks to be completed at various times during the duration of the project, the project manager can be supported by additional experts from the tech-solute expert team for defined periods of time
5.9 The project manager regularly contacts the customer to inform them of the current development status. Regular coordination between the project manager and the customer takes place by telephone or via web conferences. More intensive coordination and milestone meetings take place after prior coordination on site with the client or at tech-solute.
5.10 The Ordering Party shall be obliged to place products developed by tech-solute on the market only after they have been released by tech-solute and the certifications and markings required under product safety law (e.g. CE marking, EMC conformity, etc.) have been issued.
5.11 If the customer does not comply or does not fully comply with the aforementioned obligations to cooperate, we shall be released from our obligation to perform services. This also applies in particular if the information provided by the customer is incorrect or incomplete.
6. Prices; Payment; Price adjustment
6.1 Prices are net prices plus the statutory value added tax.
6.2 The prices stated in the order confirmation shall apply. Unless lump-sum prices have been agreed, services are charged according to time spent. The hourly and daily rates shall be based on the rates of tech-solute stated in the order confirmation.
6.3 Travel costs and incidental expenses shall be invoiced separately to the customer, even in the case of lump-sum prices, in accordance with the “additional cost table” printed in our offer, as incurred.
6.4 The customer carries the costs for shipping and transport. If delivery or assembly is agreed, we will invoice the travel time to and from the site separately.
6.5 If invoicing is based on time spent, the time is billed on a daily or hourly basis.
6.6 If the service is provided at the request of the customer on a Saturday, on a Sunday or public holiday or in the period from 7 p.m. to 7 a.m (CET)., a surcharge of 100% of the agreed hourly or daily rate is due.
6.7 6.7 If goods or services are to be provided in accordance with the contract (if a delivery period of more than 4 months has been agreed) or for reasons for which the customer is responsible later than four months after conclusion of the contract, and if material prices, prices from suppliers, wages, transport costs, tax rates, cost increases due to changes in the law or similar costs have increased significantly for the calculation up to the agreed execution date, we shall be entitled to adjust the prices accordingly in accordance with § 315 BGB (German Civil Code). Within the scope of the price adjustment, any substantial increases in the costs relevant for the calculation of our services which occur between the conclusion of the contract and the delivery date and for which we are not responsible must be taken into account, whereby a reduction in these costs must also be taken into account.
7. Terms of Payment; Regulation in event of default
7.1 Invoices are due for payment without deduction within 10 working days of receipt. If the customer is in default of payment, the statutory regulations on default of payment shall apply.
7.2 We only grant discounts and other deductions from the invoice amount on the basis of a special written agreement.
7.3 We are entitled at any time to demand advance payments in an appropriate amount for the services to be rendered by us and the expenses to be incurred within the framework of the execution of the order. We are entitled to only take action after receipt of the advance payment.
7.4 We are entitled to demand advance or interim payments according to the progress of the project in the amount of the value of the respective proven contractual services including the reported amount of VAT due thereon. The services shall be evidenced by an verifiable list that enables the customer to assess the services.
7.5 Advance payments already made will be deducted from the final invoice.
8. . Disallowance of offsetting and assignment
8.1 The customer shall only be entitled to a right of retention and the right of set-off if his counterclaims are undisputed, have been legally established, have been acknowledged by us or are based on warranty claims.
8.2 The customer is not entitled to assign claims arising from the contract concluded with us to third parties.
9. Reservation of Ownership
9.1 Until full settlement of all our claims arising from the business relationship with the customer has been made, we reserve title to the development results we have produced, i.e. to all items and products, technical drawings and documents manufactured by us (hereinafter referred to as “reserved goods”).
9.2 The customer may neither pledge the goods subject to retention of title to third parties nor assign them as security before full payment of the secured claims. The customer must inform us immediately in writing if and insofar as third parties take hold of the goods subject to retention of title which are our property.
9.3 The customer is authorised to resell the reserved goods in the ordinary course of business. The customer assigns to us his claims from the resale of the goods subject to retention of title in the amount of the final invoice amount including VAT agreed between us and the customer; we hereby accept the assignment already. This assignment shall apply regardless of whether the reserved goods have been resold without or after processing. The customer shall remain authorised to collect the claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we will not collect the claim as long as the customer meets his payment obligations towards us, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or there is no suspension of payments.
9.4 The processing, treatment or transformation of the reserved goods by the customer shall always be carried out in our name and on our behalf. In this case, the customer’s expectant right to the converted goods subject to retention of title shall continue. If the goods subject to retention of title are processed with other items not belonging to the customer, we shall acquire co-ownership of the new item in the ratio of the objective value of the goods subject to retention of title to the other processed items at the time of processing. The same shall apply in the event of mixing. If the mixing takes place in such a way that the customer’s item is to be regarded as the main item, it shall be deemed to be agreed that the customer transfers co-ownership to us on a pro rata basis and shall keep the sole ownership or co-ownership thus created for us. In order to secure our claim against the customer, the latter shall also assign to us such claims as accrue to him against a third party as a result of the combination of the goods subject to retention of title; we already accept this assignment.
9.5 9.5 If the customer has resold the goods subject to retention of title and is in default of payment, if an application for the opening of insolvency proceedings is filed or if payments have been suspended, we may demand that the customer discloses to us the claims assigned as security from the resale of the goods subject to retention of title and their debtors, provides all information required for the collection of the claims and hands over to us the documents required for this purpose and notifies the debtor of the assignment.
9.6 If the value of the reserved goods or the realisable value of the securities available to us exceeds the claims to be secured by more than 20%, we shall be obliged to release the securities. The selection of the securities to be released shall be up to us.
10. Warranty; limitation period
10.1 The development order is carried out in accordance with the state of the art in science and technology.
10.2 Warranty claims of the customer are limited to the right of supplementary performance. If the supplementary performance fails, the customer may, at his discretion, demand a reduction of the remuneration (abatement) or withdraw from the contract.
10.3 The customer is obliged to notify us of obvious defects in the development results provided or the services rendered immediately after delivery or creation or occurrence of the defect.
10.4 10.4 The customer is obliged to provide us with documents on the type and occurrence of defects or deviations from the contractually agreed product requirements in accordance with the specifications and to cooperate in the determination and containment of any defects, in particular to provide us with error messages, operating logs, technical drawings, files and other documents.
10.5 Warranty work is performed on working days between 7:00 am and 7:00 pm (CET). Insofar as we perform warranty work at the request of the customer on a Saturday, on a Sunday or public holiday or in the period from 7 p.m. to 7 a.m. (CET), we shall invoice the customer for the additional expenditure with a surcharge of 100 % of the hourly or daily rate agreed for the performance of our services.
10.6 10.6 If a defect is attributable to instructions or specifications of the customer, to the materials or components supplied or prescribed by the customer or to the quality of the preliminary performance of another contractor, we shall be released from our obligation to provide a warranty for these defects insofar as we have previously notified the customer of our concerns in text form.
10.7 If the customer deviates from the development steps specified in the order confirmation without our prior written consent, in particular if he omits test phases, we shall be released from our warranty obligation for any defects.
10.8 10.8 If the customer makes changes to the development results provided by us without our prior written consent, in particular changes to the technical design of prototypes or products ready for series production, the materials or components used, the calibration or setting of machines, we shall not assume any warranty for defects based on the changes made by the customer. In this case, the customer shall bear the burden of proof that any defects found would also have existed without the changes made by the customer.
10.9 We do not assume any warranty for services rendered by third party contractors commissioned by us on behalf of the customer or on our own behalf at the customer’s expense. We assign to the customer any warranty claims and/or claims for damages to which we are entitled against third parties
10.10 The general limitation period for claims arising from material defects and defects of title, with the exception of claims for damages, is s one year from acceptance, in deviation from § 634a para.1 no.1 BGB.
11.1 Formal acceptance of the development results is carried out in accordance with the acceptance criteria agreed in the specifications. An acceptance report shall be drawn up on the acceptance, which shall be signed by tech-solute and the customer.
11.2 As soon as the individual development results are ready for acceptance, i.e. the services are essentially complete, we inform the customer in text form that they are ready for acceptance and specify a prompt date for acceptance (acceptance request). In the event that the customer is prevented from accepting this date, he shall be entitled to specify a new acceptance date which shall not be later than one week after the date specified by us for acceptance.
11.3 The customer shall be obliged to accept the development result provided in accordance with the contract within 14 days after the request for acceptance, unless acceptance is excluded due to the nature of the development result.
11.4 If the customer uses the development result or part of the development result and does not comply with our request for acceptance, the development result or part thereof shall be deemed to have been accepted if 28 days have elapsed since the request for acceptance and the commencement of use. We are obliged to inform the customer of the consequences of unjustified non-acceptance when requesting acceptance.
11.5 In the event of significant defects in the development results, the customer may refuse acceptance until the defects have been remedied. In this case, we are entitled and obliged to remedy the defect within a reasonable period of time.
11.6 Provided that there are no significant defects, the customer shall declare formal acceptance, if necessary listing any defects in the acceptance protocol, which shall be remedied by us within a reasonable period of time.
12. Rights to the development results
12.We make every effort to ensure that the development results we achieve do not infringe the property rights of third parties
12.2 The customer shall be entitled to all rights to protectable inventions made by tech-solute in the course of the development order. The customer is responsible for the registration of a property right.
12.3 In the case of copyrights, we grant the customer an exclusive, spatially and temporally unlimited, transferable and sub-licensable right of use.
12.4 The remuneration for the transfer of the rights to the development results is included in the agreed total remuneration for the contract development pursuant to Section 6.
12.5 We retain a simple, non-transferable and non-sublicensable right of use to the know-how underlying the development results achieved by us.
13.Termination of contract
13.1 The contractual relationship can be terminated by either party with four weeks’ notice. Notice of termination must be given in writing.
13.2 In particular, we shall be entitled to terminate the contract for good cause if essential contractual obligations have been negligently infringed by the customer, in particular if the customer refuses to cooperate in accordance with Clause 5 after we have issued a reminder and set a reasonable deadline for the performance of our services or if the customer is more than one month in arrears with payment of the remuneration in accordance with Clause 7, if insolvency has occurred or if insolvency proceedings have been instituted against the customer’s assets..
13.3 13.3 If the customer deviates from the development steps prescribed in the order confirmation without our prior written consent, in particular if he omits test phases, brings products into circulation that have not been released by us as ready for series production, or brings products into circulation that do not have the certifications and markings prescribed under product safety law (e.g. CE marking, EMC conformity, etc.), we shall be entitled, after prior warning and setting a reasonable deadline, to terminate the development order without notice for good cause.
13.4 In the event of termination of the contract by the customer for good cause for which we are responsible, we shall be entitled to demand remuneration from the customer for the partial services rendered by us up to the time of termination insofar as these are objectively usable for the customer
13.5 In all other cases of premature termination of the development order, the partial services already rendered by us shall be remunerated in accordance with the contract.
14. Confidentiality; data protection; funding
14.1 We are obliged to treat confidentially the personal and business data of our customers which become known to us in the course of our work for the customer, unless the customer releases us from this obligation or there are legal obligations to disclose such data, e.g. to authorities.
14.2 The obligation to maintain secrecy shall remain in force for a period of 3 years after termination of the contractual relationship
14.3 We process the data of our customers required for order processing in compliance with statutory data protection regulations.
14.4 If the customer applies for subsidies to finance the order placed with us, this shall be the sole responsibility of the customer. We do not guarantee that the requested subsidies will be approved or made available.
15.1 In accordance with the statutory provisions, we shall be liable for injury to life, limb or health in accordance with the German Product Liability Act (Produkthaftungsgesetz), for assumption of a guarantee of quality, for fraudulent concealment of defects and for damages based on intent or gross negligence.
15.2 We shall also be liable in accordance with the statutory provisions in the event of a grossly negligent breach of duty; only in the event of a breach of a non-substantial contractual obligation shall our liability be limited to the foreseeable damage typical of the contract.
15.3 In the event of slight negligence, we shall only be liable if essential contractual obligations are breached; in this case, liability shall be limited to the foreseeable damage typical of the contract, the occurrence of which could have been expected
15.4 In all other respects liability is excluded.
15.5 Essential contractual obligations are those whose fulfilment is essential for the proper execution of the contract and on whose observance the customer regularly relies and may rely.
15.6 The above exclusions and limitations of liability shall also apply to the benefit of the organs, legal representatives, employees and other vicarious agents of tech-solute.
16. Limitation of liability; Release from liability towards third parties
16.1 In the case of a limitation of liability to the foreseeable damage typical for the contract, the liability per damage event for material damage and financial loss is limited to € 250,000.00; for all damage within a calendar year, however, to a maximum of twice this amount
16.2 The above limitation of liability shall not apply to the extent that any additional damage is covered by tech-solute’s business liability insurance.
16.3 16.3 The customer undertakes to indemnify us against any liability towards third parties for direct and indirect damage caused by the fact that he has made changes to the development results provided without our prior written consent, in particular changes to the technical design of prototypes or products ready for series production, the materials or components used, the calibration or adjustment of machines. In this case, the customer shall bear the burden of proof that the direct or indirect damage would have occurred even without the changes made by the customer.
16.4 16.4 If the customer deviates from the development steps specified in the order confirmation without our prior written consent, in particular if he omits test phases, brings products into circulation that have not been released by us as ready for series production, or brings products into circulation that do not have the certifications and markings required under product safety law (e.g. CE marking, EMC conformity, etc.), the customer undertakes to indemnify us against any liability towards third parties for direct and indirect damages.
17. Jurisdiction and place of fulfilment; Applicable law
17.1 The place of fulfilment for obligations arising from the service contract is the registered office of tech-solute in Bruchsal, Germany.
17.2 The place of jurisdiction for all disputes arising from or in connection with the contractual relationship with the customer shall be Bruchsal. We reserve the right to sue the customer at his general place of jurisdiction.
17.3 The law of the Federal Republic of Germany shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). This translation of our General Terms and Conditions has been made in good faith, however in case of doubt the German language version is decisive