General Terms and Conditions for the Provision of Research and Development Services
Applicable in business transactions with businesses, legal persons under public law and special public funds.
1. Scope of Application; Definitions
1.1 These General Terms and Conditions (hereinafter, “GTC”) apply to the provision of research and development services and the provision of prototypes, models, samples or other physical embodiments (hereinafter, “Prototypes”) between CIKONI GmbH (hereinafter, “CIKONI”) and the customer.
1.2 Unless otherwise agreed in writing, the research and development services and the Prototypes shall be provided by CIKONI as part of pilot projects (hereinafter, “Development Services”). The object of the Development Services shall be endeavours to gain new knowledge and the examination of technical implementation options, rather than the creation of a product that is ready for series production. Unless expressly so agreed, CIKONI shall not be obliged to achieve any particular result.
1.3 These GTC shall apply to Development Services on an exclusive basis, even if they are not referred to in subsequent contracts. Any terms and conditions of the customer that conflict with, supplement or deviate from these GTC shall not become part of the contract unless CIKONI has approved their application expressly in writing. These GTC shall also apply if CIKONI accepts an order without reservations while being aware of the customer’s conflicting or deviating terms and conditions.
1.4 Any agreements made between CIKONI and the customer for the performance of a contract which supplement or deviate from these GTC must be set out in writing in such contract. The same shall apply to the cancellation of this requirement of the written form.
1.5 All rights beyond these GTC which CIKONI may have according to any provisions of law shall remain unaffected.
2. Formation of Contract
2.1 At the request of the customer, CIKONI will prepare an offer regarding the provision of Development Services. All offers are subject to change and non-binding unless they are expressly designated as binding.
2.2 Unless otherwise agreed, orders shall not become binding until they have been confirmed by CIKONI by means of an order confirmation in text form. Order confirmations that are generated using automatic devices and, therefore, do not contain a name and signature shall be deemed written order confirmations. If CIKONI does not respond to orders, requests or other declarations from the customer, this shall only be deemed approval if this has been expressly agreed to in writing. To the extent that an order confirmation contains obvious errors, misspellings or calculation mistakes, it shall not be binding upon CIKONI.
2.3 CIKONI reserves all ownership rights and copyrights in all offer documents. Such documents may not be made available to any third parties.
3. Scope of Services; Changes to the Scope of Services
3.1 The contents and scope of the Development Services that are to be provided by CIKONI shall be described in detail in the respective order confirmation and its annexes.
3.2 CIKONI will select the personnel that will be entrusted by CIKONI with the provision of the Development Services, and CIKONI reserves the right to exchange such personnel at any time. CIKONI shall additionally have the right to have the Development Services provided by subcontractors, unless the customer has legitimate interests that conflict with the employment of subcontractors.
3.3 CIKONI reserves the right to make changes to the contractually agreed Development Services to the extent that such changes are immaterial and that the customer can reasonably be expected to tolerate them.
3.4 If it turns out during the performance of the Development Services that changes to the agreed contents or scope of the services are necessary or useful, CIKONI will so advise the customer. In this case, CIKONI shall inform the customer of the changes that are necessary in the opinion of CIKONI compared to the original scope of services. If these changes result in a change in the costs incurred by CIKONI in performing the contract, both CIKONI and the customer shall have the right to demand that the agreed prices be appropriately adjusted.
3.5 The customer shall have the right to demand changes and/or extensions which go beyond the scope of services determined in the order confirmation. If the customer wishes to do so, the customer shall address its change request in text form to CIKONI. CIKONI shall inform the customer of the changes that are necessary in the opinion of CIKONI compared to the original scope of services, as well as how these changes and/or extensions will affect the remuneration and the deadlines. At the same time, CIKONI shall provide the customer with an amendment offer that takes the desired changes into account. The change and/or extension shall not become binding until CIKONI has confirmed the customer’s change order by means of an order confirmation in text form.
4. Deadlines for Performance; Delivery Dates
4.1 If deadlines for performance, milestones or other interim targets (hereinafter, “Deadlines for Performance”) are agreed, this will be done merely with a view to ensuring that the Development Services are moving in the right direction and to impose the obligation on CIKONI to report on how the Development Services are progressing. This shall not apply if the Deadline for Performance is expressly designated by CIKONI as a binding delivery date (hereinafter, “Binding Delivery Date”).
4.2 If CIKONI becomes aware that any Deadline for Performance will be impossible to meet, CIKONI will so advise the customer.
4.3 CIKONI’s adhering to a Binding Delivery Date shall be conditional upon the timely and proper fulfilment of the customer’s remaining obligations, in particular, his obligations to cooperate under Section 10 below. If there is a delay in the performance of the Development Services for reasons for which the customer is responsible, CIKONI may invoice the customer for the additional costs. In this case, the customer cannot assert any claims for damage caused by default.
4.4 Binding Delivery Dates shall be deemed met if the relevant Development Services have been completed by the time they expire.
4.5 If CIKONI’s failure to meet a Binding Delivery Date is due to force majeure or other disturbances for which CIKONI is not responsible, such as war, terrorist attacks or import and export restrictions, including those affecting any of CIKONI’s suppliers, the agreed delivery periods shall be extended for the duration of the impediment. This shall also apply if CIKONI and/or its suppliers are affected by industrial action. If the impediment continues for more than 60 days, either party shall have the right to terminate the contract. In such cases, all claims for damages shall be excluded for lack of fault.
5. Provision of Prototypes
5.1. Unless otherwise agreed in writing, any Prototypes provided to the customer by CIKONI during the performance or upon completion of the Development Services shall be provided exclusively for trial and test purposes.
5.2. Except to the extent expressly otherwise agreed, Prototypes will be made available to the customer by CIKONI at CIKONI’s place of business upon completion of the Development Services (“ex works” or EXW according to Incoterms® 2010, 70569 Stuttgart). If the customer so desires, the Prototype may be sent to another destination at the risk and at the expense of the customer; in this case, CIKONI will have the right to determine the type of shipment. At the request – and at the expense – of the customer, transport insurance will be taken out to insure the Prototype against the risks specified by the customer.
6. Work Products
6.1 If and to the extent not otherwise provided in the order confirmation issued by CIKONI, CIKONI will grant the customer in respect of the Development Services a non-exclusive and non-transferable right of unlimited duration and unlimited geographic scope to use and exploit the Development Services in accordance with their contractually intended purpose. If and to the extent that the Development Services are based on, or include, any industrial property rights or copyrights or rights in know-how which existed already before the provision of the Development Services on the part of one of the parties (hereinafter collectively, “Background IP”), CIKONI will grant the customer in respect of CIKONI’s own Background IP a simple and non-transferrable right which shall be limited to the duration of the project and of unlimited geographic scope of such extent as will be needed to evaluate the Development Services. The use of CIKONI’s Background IP for commercial use or exploitation requires a separate license agreement. Vice versa, for as long as the services are provided, the customer shall grant CIKONI a simple right of unlimited geographic scope to use the customer’s Background IP in connection with the provision of the services, provided that this is necessary for the provision of the services.
6.2 The rights to use the Development Services pursuant to Section 6.1 above shall, in accordance with Section 158 (1) German Civil Code (BGB), be granted subject to the condition precedent that the remuneration owed is paid in full. Until the rights of use have been fully acquired, CIKONI will, however, tolerate the temporary use of the Development Services by the customer. Such toleration may be revoked by CIKONI at any time.
6.3 Unless otherwise agreed, the scope of the Development Services and/or the agreed remuneration do not include the obligation to register, acquire and/or lay claim to industrial property rights or to inventions within the meaning of the German Employee Invention Act (ArbnErfG). The customer may order separately that CIKONI does so in return for reimbursement of the expenses, insofar and provided that the customer has exclusive rights in the Development Services. If CIKONI receives an order to this effect, CIKONI will endeavour to lay claim to the rights and make all necessary declarations. Unless the customer has been granted an exclusive right of use to the work results of the Development Services, CIKONI shall have the right to register, acquire or lay claim to the industrial property rights for the corresponding work results in its own name.
6.4 All responsibility for asserting claims in connection with rights in Development Services pursuant to Section 6.1 above for which the customer has been granted only a simple right of use shall lie exclusively with CIKONI, who shall have complete discretion in deciding whether and how to assert such claims. CIKONI may, at its complete discretion, decide to transfer this right to the customer or a third party.
7.1 The remuneration owed will be set out in the order confirmation issued by CIKONI.
7.2 If and to the extent that the contracting parties have agreed a lump-sum price for the Development Services, this lump-sum price shall cover the scope of services described in the order confirmation. Any changes beyond, or extensions of, this scope of services shall require a separate written fee agreement unless CIKONI is responsible for the changes or extensions.
7.3 If and to the extent that the contracting parties do not agree a lump-sum price for the Development Services, the Development Services shall be invoiced based on the time spent (hereinafter, “Amount of Work Done”).
7.4 In the absence of a special agreement, the prices for the provision of Prototypes pursuant to Section 5.2 shall be calculated “ex works” (EXW according to Incoterms® 2010, 70569 Stuttgart) excluding packaging. When shipping the Prototype pursuant to Section 5.2, sentence 2, the customer shall bear the transport costs as well as the costs of any transport insurance requested by the customer.
7.5 All prices are generally in EURO. The prices do not include statutory value-added tax, which will be stated separately on the invoice at the statutory rate applicable on the day the invoice is issued.
8. Terms of Payment
8.1 Except to the extent otherwise agreed in writing, all payments must be made within 14 days of the invoice date without any deduction.
8.2 Payments shall be deemed made as soon as CIKONI can dispose of the amount.
8.3 If the time allowed for payment is exceeded, CIKONI shall have the right to demand default interest at a rate of 9 percentage points above the base rate of the European Central Bank. This shall not exclude the right to assert further claims for damages.
8.4 If the customer defaults on a payment, CIKONI shall have the right to demand that all receivables arising out of the business relationship which are due and not subject to any defences be paid immediately in cash.
8.5 If the customer has counterclaims, this shall not entitle the customer to reduce CIKONI’s claims by the amount of the customer’s counterclaims (set-off) or assert a right to retain unless these counterclaims have been established in a judgment that cannot be appealed against or are undisputed. Furthermore, the customer may only assert a right to retain if its counterclaim is based on the same contractual relationship.
8.6 CIKONI shall have the right to deviate from Section 8.1 above and perform or provide any outstanding Development Services only in return for payment in advance, or upon the provision of security, if circumstances become known after the contract has been entered into which are suitable to significantly reduce the customer’s creditworthiness and which jeopardise payment by the customer of CIKONI’s outstanding claims under the respective contract. This shall apply mutatis mutandis if the customer refuses and/or fails to pay any outstanding claims of CIKONI even though there are no undisputed defences against CIKONI’s claims, or defences which have been established in a judgment that cannot be appealed against.
9. Reporting; Documentation
CIKONI shall document the development progress and the Amount of Work Done in interim reports, which can also be made verbally. These interim reports shall be used as a basis for the invoicing pursuant to Section 7.3 above. The customer shall be obliged to raise any objections with CIKONI without undue delay.
10. Customer’s Cooperation
10.1 The customer shall, at its own expense, use its best endeavours to assist CIKONI in the provision of the services.
10.2 Such cooperation shall particularly include, without limitation:
˗ Designating a contact, as well as notifying CIKONI without undue delay if this contact changes and designating a new contact;
˗ Making available all the information, data and documentation needed for proper performance by CIKONI,
˗ Raising any objections following the interim reports without undue delay.
11. Warranty; Liability
CIKONI shall be liable for the proper performance of the services in accordance with the rules of science and technology within the limits defined by the following provisions:
11.1 Except to the extent otherwise agreed in writing, CIKONI does not warrant that any particular development result will be achieved, or that it will be technically feasible or can be exploited economically.
11.2 CIKONI shall be liable without limitation for damage resulting from a breach of guarantee or from death, bodily injury or damage to health. The same shall apply to wilful misconduct and gross negligence, mandatory statutory liability for product defects (in particular, under the German Product Liability Act (ProdHaftG)) and liability for fraudulent concealment of defects. In the event of simple negligence, CIKONI shall only be liable if material contractual obligations are violated which result from the nature of the contract and are of particular importance for achieving the purpose of the contract. If such obligations are violated, or upon default or if performance is impossible, CIKONI’s liability shall be limited to such damage as can typically be expected under the contract. In all other cases, all liability shall be excluded.
12. Third-party Industrial Property Rights
12.1 Unless otherwise agreed, the examination of and guarantee for the absence of third-party rights is not included in the scope of the Development Service and is not owed. The customer is obliged to carry out research into any third-party rights that might conflict with the requested Development Services. The customer shall inform CIKONI of the findings of its research.
12.2 If any third-party claims vis-à-vis the customer that there has been an infringement of industrial property rights in connection with a Development Service, the customer shall so advise CIKONI without undue delay. CIKONI can decide at its own discretion whether to defend against these claims (including making settlements by compromise) itself or entrust the defence to the customer. If and to the extent that CIKONI decides to defend itself against third-party claims lodged against the customer, the defence shall be the exclusive right of CIKONI. This shall not affect the customer’s right to undertake its own defence in urgent cases where there is a risk of irreversible prejudice. The customer shall provide all necessary support to CIKONI. In particular, the customer shall send CIKONI all necessary information in writing, if possible, and provide all necessary documentation and give and/or provide any further information, if so requested. To the extent and insofar as CIKONI assumes the defence, CIKONI shall make all necessary efforts to ward off the third-party claims and – if the property right infringement is due exclusively to an infringement by CIKONI – shall bear such claims at its own expense. The provisions of Section 11 above shall remain unaffected.
12.3 To the extent that any third-party industrial property rights have been infringed, CIKONI may choose whether to carry out the rectification (i) by procuring from the person or entity that is entitled to dispose of the industrial property a right of use in favour of the customer which suffices for the purposes of the contract or (ii) by modifying the infringing Development Service, provided that such modification has no further consequences or that it only has consequences which are acceptable to the customer, or (iii) by replacing the infringing Development Service, provided that such replacement has no further consequences or that it only has consequences which are acceptable to the customer, so that no industrial property rights are infringed if such Development Service is used in accordance with the contract or (iv) by providing a new Development Service which, if used in accordance with the contract, does not infringe any third-party industrial property rights or (v) if the Development Services continue to be provided and their further performance in line with any of the aforesaid options would be economically unreasonable, by terminating the contract.
13.1 If the customer breaches the contract, in particular, if the customer defaults on a payment, CIKONI may, without prejudice to any other contractual or statutory rights, terminate the contract upon expiry of a reasonable grace period.
13.2 Furthermore, CIKONI may terminate the contract without setting a grace period if the customer discontinues its payments or applies for the institution of insolvency proceedings or of similar debt settlement proceedings against its assets.
13.3 The preceding provisions shall not affect the right of either party to terminate the contract without notice for cause.
14.1 The customer shall be obliged, for an unlimited period of time, to maintain the secrecy of any and all information about CIKONI to which the customer gains access and which is designated as confidential or can be identified as a trade or business secret based on other circumstances, and the customer may not record, disclose or exploit any such information.
14.2 The customer shall make suitable contractual agreements with the employees and agents who work for it to ensure that they, too, refrain for an unlimited period of time from any exploitation for their own purposes, disclosure or unauthorised recording of such trade and business secrets.
15. Governing Law
All legal relations between CIKONI and the customer shall be governed by the laws of the Federal Republic of Germany, without regard to the relevant conflict-of-laws provisions (private international law) and without regard to the United Nations Convention on Contracts for the International Sale of Goods (CISG).
16. Place of Jurisdiction
16.1 The exclusive place of jurisdiction for all claims arising out of the business relationship shall be Stuttgart, Germany (for local court proceedings, the Local Court of Stuttgart (AG Stuttgart) in D-70190 Stuttgart). CIKONI shall also have the right to sue the customer in a court at the customer’s place of business.
16.2 Any transfer of rights and obligations of the customer to third parties shall require the written consent of CIKONI.
16.3 The place of fulfilment for all obligations that are to be performed by the customer and by CIKONI shall be CIKONI’s place of business.