(1) All services and offers from Ather oHG, division Technikum (Contractor or CN) are provided exclusively on the basis of these general terms and conditions of business (T&Cs). These are an integral part of all contracts that CN enters into with its contractual partners (Client or CL) in respect of the services which are offered by CN. They also apply to all future services or offers to CL, even if they are not agreed separately.
(2) Terms and conditions of business of CL or a third party shall not apply, even if CL does not separately object to the use thereof in a specific case. Even if CN refers to a letter which contains terms and conditions of business of CL or a third party or refers to them, this shall not constitute any agreement to the validity of those terms and conditions of business.
2. Start of Contract and End of Contract; Object of Contract
(1) Orders from CL shall only be deemed to have been accepted once they have been confirmed in writing by CN (order confirmation). An order is completed when the test report or test certificate is submitted.
(2) The object of the orders is the agreed service, not a specific outcome.
3. Prices and Payment
(1) The prices set out in the quotations submitted by CN shall apply, unless something to the contrary has been agreed. They apply to the scope of service which is outlined in the order confirmations. Extra services or special services shall be charged separately. The prices are quoted in euros, excluding the respective statutory value added tax, and for export shipments excluding customs duties, fees and other public levies.
(2) If the agreed prices are based on CN’s list prices and the delivery should not be made until four months after the contract is entered into, CN’s list prices that apply at the time that the service is provided shall apply.
(3) Invoiced amounts are to be paid within 10 days without any deductions, unless something to the contrary has been agreed in writing. The relevant date for the payment is the date when it is received by CN. Payment by cheque is ruled out, unless this is agreed separately in a specific case. If CL does not make a payment when it is due, interest shall be charged on the outstanding amounts at a rate of 5% p.a. from the due date; the right to claim higher interest and additional damages in the event of default shall remain unaffected.
(4) The offsetting of counterclaims of CL or the withholding of payments on account of such claims shall only be permitted if the counterclaims are undisputed or have been established to be legally binding in court.
(5) Irrespective of this, CN shall be entitled to demand advance payments before providing the service or to demand payments by instalment as the provision of the service progresses. Once the provision of the service has been completed, the total costs as set out in the order confirmation shall be invoiced, taking into account the advance payments or payments by instalment that have already been made.
(6) A cash discount shall only be permitted if there is a special agreement in writing between CN and CL.
(7) Bank charges for payments made in a foreign currency and the costs of payment transactions as well as local taxes and levies shall be charged to CL.
4. Cancellation and Termination
(1) In the event of premature termination which is not the fault of CN, CL must pay for the full service. In the event of premature termination which is the fault of CN, the costs which are incurred up to this point in time shall be billed at cost. The latter shall not apply if CN has acted with wilful intent or gross negligence. CL must prove the fault as well as wilful intent and gross negligence of CN.
(2) If CL cancels the order without a reason for which CN is responsible or postpones an agreed deadline, CL must pay CN a sum amounting to 20% of the gross order value irrespective of the specific case. CN shall retain the right to demonstrate and demand reimbursement of the expenses that have already been incurred and other costs that have actually been incurred.
(3) In the event of cancellation, CN may demand further payments according to the following rules: If the notification of cancellation is received by CN in a period of four weeks up to one week before the deadline, CL shall be obliged to pay another 30% (so 50% in total) of the gross order value. If the notification of cancellation is received by CN within the last seven calendar days before the deadline, CL shall be obliged to pay 100% of the gross order value.
5. Test Material and Cooperation of CL
(1) Test specimens are to be procured by CL free of any third-party rights and sent to CN with carriage paid. CL shall pay the costs and bear the risk of sending the consignment. The test specimens must be packaged properly and appropriately, taking account of any instructions from CN. In the event that third parties assert any claims against CN in respect of the test specimen, CL shall indemnify CN against any kind of claims and costs. On request, CL shall send further test specimens under the same terms and conditions to safeguard a test result if applicable.
(2) During the period of retention of the test specimens, CN must only guarantee the level of care that needs to be applied in similar affairs of its own, Section 690 of the German Civil Code.
(3) The test specimens may be unintentionally or intentionally damaged, destroyed or rendered unusable as part of the tests and examinations. To this extent, CN excludes any liability, unless CN is shown to have displayed wilful intent or gross negligence.
(4) At its own discretion, CN may keep a reserve sample at its own expense. Apart from this, CL shall be obliged to collect test specimens and other objects and documents which CL has provided or which CN has procured at the request of or in the interest of CL (residual material) within four weeks of the conclusion of the testing at its own expense. If the collection is not made within this period, CN shall be at liberty to dispose of the residual material at CL’s expense.
(5) The parties may agree that CN shall retain the residual material beyond the four-week deadline. In this case, the risk of accidental loss or accidental damage or destruction shall transfer to CL when the four-week period expires. CN shall be entitled to demand a flat charge for default amounting to up to €250 per commenced week. However, CL shall be obliged to collect the residual material no more than two months after the conclusion of the testing. If CL fails to do this, CN shall be entitled to dispose of the residual material at CL’s expense. Different individual agreements in writing are possible.
(6) Test specimens must be installed in the test apparatus and test structures by CL. Changes following installation must likewise be made by CL. If CL nevertheless commissions CN to perform the installation or change, CN shall not be responsible for any damage resulting from an incorrect installation or change. A different situation applies if CL demonstrates that CN has displayed wilful intent or gross negligence in relation to the installation or change. Such installations or changes must be reimbursed as additional expenditure.
(7) Documents which are unusable in the view of CN (scrap, waste, leftover packaging etc.) shall be disposed of by CN. The disposal shall take place at cost price plus a flat-rate charge amounting to 15% of these disposal costs. CL shall reimburse these costs to CN when proof thereof is provided.
(8) CL must ensure that all the documents which are required to execute the order are submitted to CN promptly even without a special request from it and that CN is notified by CL about all processes and circumstances that may be of significance for executing the order. This also applies to the documents, processes and circumstances which only come to light during the work of CN. CN shall be entitled to consider the facts which are provided by CL as correct and complete.
(9) Test certificates and test reports whose subject is the testing of samples relate only to the tested sample and do not make any definitive statements on the subject from which the sample was taken. They likewise relate only to the specific test conditions and the specific test specimen. They exclusively reflect the facts which were established at the time of testing in accordance with the instructions issued by CL or in accordance with the order. CN shall not be obliged to refer to circumstances or facts outside of the testing procedure.
(10) Auxiliary materials which are required to carry out the test and are not provided by CL (e.g. adhesive tape, strips, profiles, nails, screws) shall be charged accordingly starting from a total amount of more than €10.00.
(11) If CL provides test rigs, CN shall not be liable for any defects or damage that can be attributed to these test rigs. In other respects, clause 5 (2) applies accordingly.
(12) If it becomes necessary to make use of services from third parties, CL shall commission these third parties directly. CL guarantees that these T&Cs shall likewise apply to these third parties.
6. Test Results
(1) Test certificates, test reports and all other written statements, photographs and drawings and the like are protected by copyright and may only be published or reproduced with the prior written consent of CN and only with no change to the content or form. Any consent granted by CN to publication or reproduction shall lapse if the standards or technical guidelines or similar circumstances on which the tests are based have changed. In this case, renewed consent under the conditions specified must be obtained.
(2) An abridged reproduction or the reproduction of a test certificate or its reproduction in parts shall likewise only be permitted with the prior written consent of CN. It is also governed by the above restriction. An abridged reproduction is deemed to mean the reference in writing to a test certificate etc.
(3) The company name and/or registered trademarks or marks of CN for any kind of promotional purposes may only be utilised with the prior written consent of CN.
(4) If CL objects to test certificates or test reports which are notified, the result shall be reviewed by CN. If the test result which is complained about is confirmed, the costs of the repeat test shall be borne by CL. Otherwise, the test result which is complained about shall be corrected free of charge. Objections to the test result shall not provide grounds to refuse to make payment.
(1) CN shall not be liable for mistakes which result from the documents and specifications submitted by CL or from actions of third parties commissioned by CL.
(2) CN shall only be liable for any damage or loss that CL incurs in the execution of the service if CL is able to demonstrate wilful intent or gross negligence on the part of CN. However, if wilful intent or negligence is demonstrated, CN shall be liable up to a maximum amount of twice the net value of the specific order.
(3) If CL has acted with wilful intent or gross negligence in the damage or loss arising, CN shall be absolved of any liability.
(4) Claims for compensation against CN shall lapse after no more than 12 months.
(5) If CN provides employees or representatives of CL with tools or other materials as part of the order, or if they use tools or materials of CN in an unsolicited way, CL shall be liable for any loss or damage to the tools or materials during the period of provision or unsolicited use.
(1) CL pledges to treat all information, in whatever form, which is disclosed to CL by CN as part of an order confidentially, and to make it the subject of non-disclosure measures appropriate to the circumstances.
(2) Information shall not be deemed to be confidential if it was already public knowledge before it was received from the disclosing party, or became public knowledge afterwards without this agreement being breached, or if before it was received from the disclosing party it was already possessed by the recipient or if it is obtained by the recipient from a third party in a lawful way and without any obligation to treat it confidentially. It shall further not be deemed to be confidential if it was disclosed by the disclosing party to a third party without any obligation to maintain confidentiality on the part of the third party, was developed or discovered independently by the recipient or was disclosed in writing by the disclosing party or had to be disclosed by the recipient following the order of a competent court or an administration or government.
(3) CN shall be authorised to label pieces of information and documents which are relevant to an order and retain them so that they can be traced for up to ten years. For this purpose, the information and data shall be recorded and stored separately.
(4) CN shall be authorised to use information and results recorded as part of the provision of the service in an anonymised way for its own purposes, for example for statistical surveys or technical order assessments. This does not apply to personal data.
9. Final Provisions
(1) The place of performance and jurisdiction for all disputes arising between the parties from the respective order shall be CN’s registered office. However, CN shall be entitled to take legal action against CL at its registered office as well.
(2) Relations between the parties shall be governed exclusively by the law that applies in the Federal Republic of Germany. The application of the UN Convention on the International Sale of Goods is excluded.
(3) In the event that the contract or these T&Cs are found to contain legal loopholes, it is agreed that these loopholes shall be closed by the legally effective regulations which the parties to the contract would have agreed based on the commercial objectives of the contract and the purpose of these T&Cs if they had known about the loophole.