General Terms and Conditions for use vis-à-vis entrepreneurs

§ 1 Applicability

1.1 The following General Terms and Conditions shall only apply in dealings with companies or legal entities under public law.

1.2 All services and offers of the Deutsche Kupferinstitut Berufsverband e.V. (hereinafter referred to as “Kupferinstitut”, “we” or “us”) are based exclusively on these General Terms and Conditions. They are an integral part of all contracts concluded by the Kupferinstitut with its contractual partners (hereinafter also referred to as “clients”) for the services it offers. They shall also apply to all future services or offers to the client, even if they are not separately agreed again, provided that the client was given the opportunity to take note of them in the case of an order confirmed by us earlier. The Kupferinstitut provides both services and work performances.

1.3 Terms and conditions of the client or third parties shall not apply, even if the Kupferinstitut does not separately object to their validity in individual cases. Even if the Kupferinstitut refers to a letter that contains or refers to the client’s or a third party’s terms and conditions, this does not constitute an agreement to the validity of those terms and conditions.

 

§ 2 Offer and conclusion of contract

2.1 All offers made by the Kupferinstitut are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. Orders or contracts can be accepted by the Kupferinstitut within fourteen (14) days of receipt.

2.2 The written contract, including these General Terms and Conditions, shall be solely authoritative for the legal relationship between the Kupferinstitut and the client. This contract fully reflects all agreements between the contracting parties regarding the subject matter of the contract. Verbal promises made by the Kupferinstitut prior to the conclusion of this contract shall not be legally binding and verbal agreements between the contracting parties shall be replaced by the written contract, unless it is expressly stated in each case that they shall continue to be binding.

2.3 Additions and amendments to the agreements made, including these General Terms and Conditions, must be in writing in order to be effective. Any formal requirement under these General Terms and Conditions may not be waived by tacit agreement. § 305b of the German Civil Code (BGB) remains unaffected. With the exception of the managing director and the commercial manager, the employees of the Kupferinstitut are not entitled to make verbal agreements that deviate from the written agreement. Telecommunication, in particular by fax or e-mail, shall be sufficient to comply with the written form, provided that a copy of the signed declaration is transmitted.

2.4 Information provided by the Kupferinstitut on the object of performance (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximately authoritative, unless usability for the contractually intended purpose requires exact conformity. They are not guaranteed quality features, but descriptions or identifications of the performance.

 

§ 3 Prices and payment

3.1 The prices apply to the scope of services listed in the order confirmations. Additional or special services shall be charged separately. Prices are in EUR plus statutory value added tax, fees and other public charges.

3.2 Invoice amounts shall be paid directly without any deduction, unless otherwise agreed in writing. The date of receipt by the Kupferinstitut shall be decisive for the date of payment. Payment by cheque is excluded, unless it is agreed separately in individual cases. If the client fails to make payment when due, interest of 5 % p.a. shall be charged on the outstanding amounts from the due date; the right to claim higher interest and further damages in the event of default shall remain unaffected.

3.3 Offsetting against counterclaims of the client or the retention of payments due to such claims shall only be permissible insofar as the counterclaims are undisputed or have been legally established or arise from the same order under which the delivery in question was made.

3.4 The Kupferinstitut shall be entitled to perform or render outstanding services only against advance payment or the provision of security if, after the conclusion of the contract, it becomes aware of circumstances which are likely to substantially reduce the creditworthiness of the client and which jeopardise the payment of the Kupferinstitut’s outstanding claims by the client arising from the respective contractual relationship (including from other individual orders to which the same framework agreement applies).

 

§ 4 Delivery and delivery time

4.1 Unless otherwise stated in the order confirmation, delivery is agreed “ex works”.

4.2 Deadlines and dates for services promised by the Kupferinstitut are always approximate unless a fixed deadline or date has been expressly promised or agreed.

4.3 The Kupferinstitut may – without prejudice to its rights arising from default on the part of the client – demand from the client an extension of performance deadlines or a postponement of performance dates by the period in which the client fails to meet its contractual obligations towards the Kupferinstitut.

4.4 The Kupferinstitut shall not be liable for the impossibility of performance or for delays in performance if these are caused by force majeure or other events that were not foreseeable at the time of the conclusion of the contract (e.g. operational disruptions of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in obtaining the necessary official permits, official measures or the non-delivery, incorrect delivery or late delivery by suppliers) for which the Kupferinstitut is not responsible. If such events make it significantly more difficult or impossible for the Kupferinstitut to perform and the impediment is not only of temporary duration, the Kupferinstitut is entitled to withdraw from the contract. In the case of hindrances of temporary duration, the performance deadlines shall be extended or postponed by the period of the hindrance plus a reasonable start-up period. If the client cannot reasonably be expected to accept the service as a result of the delay, he may withdraw from the contract by immediately notifying the Kupferinstitut in writing.

4.5 The Kupferinstitut is entitled to partial performance if

  • the partial performance is usable for the client within the scope of the contractual purpose,
  • the provision of the remaining service is ensured and
  • the client does not incur significant additional expenses or costs as a result (unless the Kupferinstitut agrees to bear these costs).

4.6 If the Kupferinstitut is in default with a service or if a service becomes impossible for the Kupferinstitut, for whatever reason, the Kupferinstitut`s liability for damages is limited in accordance with § 8 of these General Terms and Conditions.

 

§ 5 Change of order (change request)

5.1 The client shall be entitled to make requests for additions and changes arising in the course of concretising the performance, which the Kupferinstitut shall take into account to the best of its ability. In this case, the Kupferinstitut cannot demand any remuneration in excess of § 3.

5.2 The client shall furthermore be entitled to demand changes that go beyond a concretisation of the service, if such changes should arise in particular from the technical requirements. In this case, the client shall submit a formal request for change to the Kupferinstitut, according to which the order is to be adjusted and supplemented accordingly. The Kupferinstitut shall respond to this request for modification within a short period of time, at the latest within one (1) month. In its reply, the Kupferinstitut shall state in particular what changes it considers to be necessary compared to the previous order and what effects this will have on the remuneration and deadlines. The Kupferinstitut shall at the same time submit an offer for the execution of the change request.

5.3 If the client accepts the offer, the change shall become part of the order and the schedule shall be supplemented accordingly. The Kupferinstitut cannot demand any remuneration for the examination of the change request or the preparation of the offer.

 

§ 6 Place of performance, acceptance

6.1 The place of performance for all obligations arising from the contractual relationship shall be Düsseldorf, unless otherwise stipulated. If the Kupferinstitut owes services, the place of performance shall be the place where the service is to be performed.

6.2 The method of dispatch shall be at the discretion of the Kupferinstitut.

6.3 If acceptance is required, the item shall be deemed to have been accepted when

  • the service has been completed,
  • the Kupferinstitut has informed the client of this fact with reference to the fiction of acceptance in accordance with this § 6 (3) and has requested acceptance,
  • twelve working days have elapsed since delivery or the client has started using the item (e.g. has used the expert opinion) and in this case six (6) working days have elapsed since delivery and
  • the client has failed to accept the item within this period for a reason other than a defect notified by the Kupferinstitut that makes the use of the item impossible or significantly impairs it.

 

§ 7 Warranty for the performance of work and services

7.1 The warranty period shall be one year from delivery or, if acceptance is required, from acceptance. This period shall not apply to the client’s claims for damages arising from injury to life, body or health or from intentional or grossly negligent breaches of duty by the Kupferinstitut or its vicarious agents, which shall each be time-barred in accordance with the statutory provisions.

7.2 The delivered goods shall be inspected carefully immediately after delivery to the client or to a third party designated by the client. With regard to obvious defects or other defects that would have been recognisable in the course of an immediate, careful examination, they shall be deemed to have been approved by the buyer if the Kupferinstitut does not receive a written notice of defect within seven (7) working days after delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the buyer if the notice of defect is not received by the Kupferinstitut within seven (7) working days after the point in time at which the defect became apparent; however, if the defect was already apparent at an earlier point in time during normal use, this earlier point in time shall be decisive for the beginning of the period for giving notice of defects.

7.3 In the event of material defects in the delivered goods, the Kupferinstitut shall be obliged and entitled to choose between rectification of the defect or replacement delivery within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the rectification or replacement delivery, the client may withdraw from the contract or reduce the price appropriately.

7.4 If a defect is due to the fault of the Kupferinstitut, the client may claim damages under the conditions set out in § 11.

7.5 The warranty shall not apply if the client modifies the delivery item or has it modified by a third party without the consent of the Kupferinstitut and if this makes it impossible or unreasonably difficult to remedy the defect. In any case, the client shall bear the additional costs of remedying the defect resulting from the modification.

 

§ 8 Warranty for the provision of services

8.1 The Kupferinstitut shall perform the agreed services in accordance with the latest published state of the art.

8.2 If the services to be rendered by the Kupferinstitut are defective, the Kupferinstitut shall either rectify the defects or replace the defective development results or parts thereof with new ones within a reasonable period of time. After unsuccessful expiry of the second rectification period, the client may demand partial rescission of the contract or reduction of the remuneration.

8.3 Claims for damages by the client shall only exist in accordance with § 11 of these Terms and Conditions; otherwise they shall be excluded.

 

§ 9 Property rights

9.1 An offer as well as all drafts, calculations, drawings, etc. prepared by the Kupferinstitut are our intellectual property and may not be reproduced or made available to third parties for inspection without our written consent, even if the order is placed. In particular, the documents may not be used for the reproduction of identical or similar systems, for tenders or blank sheets.

9.2 If the order is not placed, all documents shall be returned to us upon request, together with the assurance that no copies of the documents or of parts of the documents have been used contrary to clause 9.1.

9.3 If the Kupferinstitut has to deliver according to drawings, models, samples or using parts provided by the client, the client shall be responsible for ensuring that the industrial property rights of third parties are not infringed thereby. The client shall inform us of any rights known to him. The client shall indemnify us against claims of third parties and compensate us for any damage incurred. If we are prohibited from manufacturing or delivering by a third party with reference to a property right belonging to him, we shall be entitled – without prior examination of the legal situation – to stop work until the legal situation has been clarified by the client and the third party at their expense. Should the continuation of the order no longer be reasonable for us due to the delay, we shall be entitled to withdraw from the contract.

9.4 Drawings and samples provided to us which have not led to an order shall be returned on request against payment of costs by the client; otherwise we shall be entitled to destroy them 3 months after submission of the offer. After fulfilment of the order (acceptance), drawings and samples provided to us will be returned on request against payment of costs by the client; otherwise we are entitled to destroy them three (3) months after acceptance.

 

§ 10 Contractual Results/Foreground

10.1 The industrial property rights and copyrights (“Foreground”) created by us during the performance of the research and development work and during the term of this contract shall belong exclusively to the client and are hereby transferred in full to the client by the Kupferinstitut or in accordance with the following provisions.

10.2 Insofar as the Foreground consists of works protected by copyright, the Kupferinstitut hereby transfers to the client the exclusive, temporally and spatially unlimited, transferable and sub-licensable right of use. This right of use includes, in particular, the duplication, distribution, public reproduction and making available to the public of the Foreground in all known forms of use, including the right to edit and further develop the Foreground and the use of the results arising from this to the aforementioned extent.

10.3 The Kupferinstitut has entered into valid and sufficient agreements with its employees (including researchers, representatives, consultants and subcontractors) or will take all necessary measures to ensure the transfer of the Foreground created by this group of persons to the Kupferinstitut. In particular, it shall make unrestricted use of the inventions – patentable and/or utility modelable – created by its employees.

 

§ 11 Liability for damages due to fault

11.1 The Kupferinstitut’s liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect performance, breach of contract, breach of duties during contractual negotiations and tort, shall be limited in accordance with this § 11, insofar as fault is relevant in each case.

11.2 The Kupferinstitut shall not be liable in the event of simple negligence on the part of its executive bodies, legal representatives, employees or other vicarious agents, unless a breach of material contractual obligations is involved. Material contractual obligations are the obligation to provide the service in good time, freedom from defects of title and material defects which impair its functionality or suitability for use to a more than insignificant extent, as well as obligations to provide advice, protection and care which are intended to enable the client to use the service in accordance with the contract or to protect the life and limb of the client’s personnel or to protect the client’s property from considerable damage.

11.3 Insofar as the Kupferinstitut is liable for damages on the merits in accordance with § 11 (2), this liability is limited to damages that the Kupferinstitut foresaw as a possible consequence of a breach of contract at the time the contract was concluded or that we should have foreseen if we had exercised due care. Indirect damages and consequential damages that are the result of defects in the performance are also only compensable to the extent that such damages are typically to be expected when the performance is used for its intended purpose.

11.4 In the event of liability for simple negligence, the Kupferinstitut’s liability to pay compensation for property damage and further financial losses resulting therefrom shall be limited to eight (8) times the order amount per case of damage (individual order), even if a breach of material contractual obligations is involved.

11.5 The above exclusions and limitations of liability shall apply to the same extent in favour of the bodies, legal representatives, employees and other vicarious agents of the Kupferinstitut.

11.6 Insofar as the Kupferinstitut 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.

11.7 The limitations of this § 8 do not apply to the liability of the Kupferinstitut due to intentional conduct, for guaranteed characteristics, due to injury to life, body or health or according to the Product Liability Act.

 

§ 12 Secrecy

12.1 The Kupferinstitut undertakes,

  • to treat confidential information as strictly confidential and to use it only in connection with its purpose,
  • to disclose confidential information only to those who depend on the knowledge of such information for the performance of the contract, provided that the Kupferinstitut ensures that its employees or agents are bound by confidentiality,
  • to secure confidential information against unauthorised access by third parties by means of appropriate confidentiality measures and to comply with the statutory and contractual provisions on data protection when processing the confidential information. This also includes technical security measures adapted to the current state of the art (Art. 32 DS-GVO) and the obligation of employees to maintain confidentiality and observe data protection (Art. 28 para. 3 lit. b DS-GVO),
  • if the Kupferinstitut is obliged to disclose part or all of the Confidential Information due to applicable legal provisions, judicial or official orders or due to relevant stock exchange regulations, to inform the client (as far as legally possible and practicable) of this in writing without delay and to make all reasonable efforts to keep the scope of the disclosure to a minimum and, if necessary, to provide the client with all reasonable assistance seeking a protective order against the disclosure of all or part of the Confidential Information.

12.2 Upon request by the client, the Kupferinstitut shall return or destroy all Confidential Information, including copies thereof (including electronically stored Confidential Information), within ten working days of receipt of the request, unless this conflicts with retention obligations agreed with the client or with statutory obligations.

12.3 The destruction of electronically stored confidential information shall be effected by the complete and irrevocable deletion of the files or irretrievable destruction of the data carrier. Complete and irrevocable deletion means, in the case of electronically stored confidential information, that the confidential information is deleted in such a way that any access to this information becomes impossible, whereby special deletion procedures (e.g. by means of “wiping”) are to be used which comply with the recognised standards (e.g. standards of the Federal Office for Information Security).

12.4 Excluded from this – in addition to confidential information with regard to which there is a retention obligation within the meaning of paragraph 2 – is confidential information whose destruction or return is not technically possible, e.g. because it was stored in a backup file on the basis of an automated electronic backup system for securing electronic data; this also includes the technically necessary retention of master data (e.g. personnel or customer numbers) which is necessary in order to establish a link to the archived information.

12.5 At the request of the client, the Kupferinstitut shall assure in writing that it has completely and irrevocably deleted all confidential information in accordance with the provisions of the above paragraphs and the client’s instructions.

 

§ 13 Final provisions

13.1 The place of jurisdiction for any disputes arising from the business relationship between the Kupferinstitut and the client shall be Düsseldorf or the registered office of the client, at the Kupferinstitut’s discretion. In such cases, however, Düsseldorf shall be the exclusive place of jurisdiction for actions against the Kupferinstitut. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.

13.2 The relations between the Kupferinstitut and the client shall be governed exclusively by the laws 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.

13.3 Insofar as the contract or these General Terms and Conditions contain regulatory gaps, those legally effective regulations shall be deemed to have been agreed to fill these gaps which the contracting parties would have agreed to in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery if they had been aware of the regulatory gap.

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