Legal
General Terms and Conditions (GTC) of keiltronic GmbH
Version: 1 February 2022
§ 1 Scope of application
These terms and conditions apply exclusively to all services provided by keiltronic GmbH. Vis-à-vis clients, they also apply to all future business relationships, even if they are not expressly agreed again. Deviating terms and conditions — in particular those of the client — apply only if this has been expressly agreed with the client in writing.
§ 2 Offer, documents and conclusion of contract
2.1Offers made by keiltronic GmbH are subject to change and non-binding until the final signature of the development contract or the written order confirmation. Declarations of acceptance and all orders require written confirmation, or confirmation by remote written communication, from keiltronic GmbH to be legally effective.
2.2All details such as drawings, illustrations, dimensions, weights and other data, as well as information in prospectuses and brochures, are binding only if this is expressly agreed in writing.
2.3keiltronic GmbH reserves without restriction its rights of ownership and its exploitation rights under copyright in cost estimates, concept proposals, drawings and other documents. These documents may be made accessible to third parties only with the prior written consent of keiltronic GmbH.
2.4The data and information contained in the documents do not constitute guarantees; guarantees require in every case an express written confirmation by keiltronic GmbH.
2.5Contracts with the client become effective only through the written development contract or the written order confirmation. All agreements made between keiltronic GmbH and the client for the purpose of executing the contractual relationship are set down in writing in the development contract or the order confirmation. All amendments, side agreements and other arrangements, in particular individual agreements deviating from the offer, the development contract or the order confirmation, must be made in writing.
2.6Development begins at the earliest upon signature of the development contract or dispatch of the order confirmation, unless agreed otherwise therein. The subject matter of the development contract or the order confirmation is a detailed task specification provided by the client and a cost breakdown provided by keiltronic GmbH.
§ 3 Services of keiltronic GmbH
3.1keiltronic GmbH will perform its services in accordance with the current state of the art and the written task specification. The content of the task specification as formulated in the development contract or the order confirmation is decisive.
3.2Standard building blocks that keiltronic GmbH incorporates into its services are supplied without system-level documentation.
3.3The client appoints a project manager for the cooperation with keiltronic GmbH. This project manager can take decisions, or bring them about without delay, records them in writing and is expressly authorised to represent the client in legal transactions. The client’s project manager is available to keiltronic GmbH for necessary information. keiltronic GmbH will involve this project manager to the extent that the execution of the development contract or the order confirmation so requires.
3.4The work of keiltronic GmbH is carried out on the premises of keiltronic GmbH and, in exceptional cases where this is necessary for its proper execution, also at the client’s premises. In this case, the client provides keiltronic GmbH and its staff with adequate workplaces and working equipment. Travel times for the outward and return journey are part of the working time and are invoiced separately.
3.5If the service specification or the task specification in the development contract or the order confirmation contains gaps, errors, scope for interpretation or ambiguities with regard to the development service to be provided, or if details are missing, keiltronic GmbH is entitled to perform the development service at its reasonable discretion.
3.6keiltronic GmbH may transfer contractual services in whole or in part to third parties (subcontractors), in particular where services fall within the remit of specialised experts.
§ 4 Confidentiality, secrecy and data protection
4.1keiltronic GmbH undertakes to use all knowledge of trade secrets, and of information designated in writing as confidential, obtained in the course of the contractual relationship solely for the execution of the development contract or the order confirmation.
4.2The client undertakes to make offers and cost estimates provided to it accessible to third parties only with the express written consent of keiltronic GmbH.
4.3The obligation of confidential treatment by keiltronic GmbH does not apply to ideas, concepts, know-how and techniques relating to product creation, nor to data already known to keiltronic GmbH or which was or becomes known outside this development contract or the order confirmation.
4.4keiltronic GmbH obliges its employees to maintain confidentiality.
4.5keiltronic GmbH may include the client’s name and a short description of the services provided in a reference list and publish it online. All other advertising references to the client will be agreed with the client in advance.
4.6The client expressly consents — waiving separate notification — to the processing of the client’s personal data within the scope permitted by the German Federal Data Protection Act, insofar as this is necessary for the performance of the contractual relationship.
§ 5 Duty of the client to cooperate
5.1The client is obliged to notify keiltronic GmbH without delay and in writing of all circumstances relevant to the performance of the contract and to provide keiltronic GmbH with the requested information and the agreed personnel and material resources. In the event of breaches of this provision, keiltronic GmbH is entitled, after notification and the setting of a reasonable deadline, to terminate the development contract or the order confirmation, without prejudice to keiltronic GmbH’s claims to remuneration.
5.2When asserting claims for defects, the client is obliged to document the alleged defects at its own expense and to submit this documentation in writing together with the notification of defects.
5.3Hardware and software may be used by the client only in the configuration recommended by keiltronic GmbH and for the approved purpose. In the event of a breach, all of the client’s claims for defects and damages lapse, except in cases of intent or gross negligence on the part of keiltronic GmbH.
§ 6 Delivery
6.1Delivery times are non-binding unless expressly approved in writing by keiltronic GmbH.
6.2Delivery dates are subject to correct and timely supply to keiltronic GmbH by its own suppliers and to unforeseen events in production or other impediments due to force majeure, operational disruptions, transport delays, industrial disputes, material shortages, pandemics or pandemic-like situations, or import and export restrictions, which subsequently make performance substantially more difficult or impossible for keiltronic GmbH or its suppliers.
6.3Delivery dates are extended by the period of the impediment plus a reasonable restart period. Delivery dates are met if the subject matter of the contract has left keiltronic GmbH by the end of the agreed period or keiltronic GmbH has given notice of readiness for dispatch. Delivery dates are also deemed to be met if the subject matter of the contract cannot be dispatched in time through no fault of keiltronic GmbH. In this case, notification of readiness for dispatch is sufficient.
6.4keiltronic GmbH is entitled to make partial deliveries and to invoice services in part, provided partial deliveries are reasonable for the client.
§ 7 Acceptance
7.1keiltronic GmbH hands over the completed developments and products to the client and does not act as a manufacturer or distributor within the meaning of the German Product Liability Act (ProdHaftG).
7.2The client will examine the delivery for conformity with the contract in every respect, in particular all associated components and documentation, and, if it conforms to the contract, declare its acceptance in writing (final release).
7.3Unless agreed otherwise, the examination period is two weeks from receipt of the development service. keiltronic GmbH is willing to support the client in connection with the handover, including during an acceptance test, against remuneration on a time-and-materials basis.
7.4The services are also deemed accepted as soon as, after expiry of the two-week examination period, the usability of the work is not significantly impaired by reported defects or no notification of defects has been made by the client.
7.5Where partial services are agreed, each is accepted separately. The interaction of all parts is examined within the acceptance test for the last partial service.
§ 8 Remuneration, payments, prices and due dates
8.1The remuneration of keiltronic GmbH is governed by the written offers, which form part of the development contract or the order confirmation. It is calculated on the basis of the time spent on the work (remuneration on a time-and-materials basis), unless offered or agreed otherwise in writing. Unless agreed otherwise, keiltronic GmbH is entitled, in addition to the remuneration, to reimbursement of travel costs and other expenses.
8.2For fixed-price orders, invoicing to the client and the client’s payment, unless agreed otherwise, take place as follows:
- 20% upon conclusion of the contract
- 40% upon delivery of the first functional prototype
- 20% upon delivery of the pre-series units
- 20% upon acceptance
8.3Where work is performed on a time-and-materials basis, keiltronic GmbH may invoice monthly. The client may raise objections to invoices for remuneration on a time-and-materials basis only within one month of receipt; thereafter they are deemed approved. Support services (in particular installation, instruction, training and consulting) are remunerated separately unless expressly included in the fixed price.
8.4Payments to keiltronic GmbH are to be made within 14 days of invoicing without deduction. After expiry of this period, the client is in default without a reminder being required. Payment is deemed to have been made only when keiltronic GmbH can dispose of the amount (receipt of payment).
8.5All prices are subject to statutory value added tax.
8.6The right to use the products and programs is suspended while the client is in default of payment.
8.7keiltronic GmbH is entitled to change prices if more than four months lie between the conclusion of the contract and the delivery date and cost reductions or cost increases occur after conclusion of the development contract or the order confirmation, in particular as a result of collective wage agreements or changes in material prices. Price adjustments are permissible only to a reasonable extent that takes account of the relationship between performance and consideration, insofar as a reduction of profit is thereby avoided but no additional profit is generated.
§ 9 Liability for defects
9.1If defects occur during use in conformity with the contract, the client shall report them in a comprehensible form, stating the information useful for identifying the defect, and in writing if keiltronic GmbH so requests.
9.2A precondition for all claims against keiltronic GmbH is that the defect is reproducible. The client shall support keiltronic GmbH within reason in remedying defects, in particular, at keiltronic GmbH’s request, by sending the product as it was used when the defect occurred, making the operating environment available and implementing corrective measures provided by keiltronic GmbH.
9.3For work performances, keiltronic GmbH warrants that the work corresponds to the agreed service description. If, owing to a defect, this is not the case, the client is entitled to rectification or substitute performance. The client may demand a reduction of the remuneration or declare withdrawal from the contract only after having unsuccessfully set a deadline of at least three weeks for performance or subsequent performance, or after at least three failed attempts by keiltronic GmbH at rectification or substitute performance. In the case of withdrawal, the client must combine the said deadline with a warning of rejection. Further claims for damages may be asserted only within the limits of § 10 (Claims for damages and liability) of these terms and conditions. Insignificant defects do not entitle the client to withdraw from the contract.
9.4Claims for defects lapse if a service is modified, improperly installed, maintained or repaired by the client or third parties, or used in conjunction with third-party products, unless the client proves that these circumstances did not cause the defect.
9.5keiltronic GmbH may demand remuneration for its own effort where it has acted on the basis of a defect report without a claim for defects on the part of the client existing or without the client having proven a defect.
9.6If keiltronic GmbH is in default with performance or subsequent performance (through the remedying of defects), the client may set a reasonable deadline for this. If the deadline expires without result, or if performance or subsequent performance otherwise fails definitively, the client may, at its option, withdraw from the development contract or the order confirmation, demand a reduction of the remuneration (abatement) or claim damages within the scope of § 10. keiltronic GmbH may set the client a reasonable deadline to declare whether it still demands performance or subsequent performance. After fruitless expiry of this deadline, the client’s claim to performance or subsequent performance is excluded.
9.7The limitation period for claims based on defects is 12 months.
§ 10 Claims for damages and liability
10.1Claims for damages against keiltronic GmbH, including its vicarious agents — on whatever legal grounds — which presuppose slight negligence exist only if a material contractual obligation (cardinal obligation) has been breached. Claims for damages are limited to the maximum amount covered by keiltronic GmbH’s professional or business liability insurance. Liability for lost profit, business interruptions or loss of production is excluded. Claims for personal injury and for damage to property under the Product Liability Act remain unaffected.
10.2The client’s claims for damages become time-barred at the latest two years from the time at which the client becomes aware of the damage or, irrespective of such awareness, at the latest three years from the time of the damaging event.
10.3Liability for the loss of stored data is excluded.
10.4The liability of keiltronic GmbH under the German Product Liability Act, for injury to life, body and health, for fraudulent concealment of a defect and for the assumption of a guarantee for the quality of an item remains unaffected.
10.5Clauses 10.1 to 10.4 also apply in the case of any claims for damages by the client against employees or agents of keiltronic GmbH.
§ 11 Changes to the contractual relationship
11.1Either party may, during the term of the contract, request changes to the agreed scope of services from the other party in writing. After receiving a change request, the recipient will examine whether and on what conditions the change is feasible (e.g. effects on deadlines and/or remuneration) and notify the requesting party in writing within four weeks of its approval or rejection, or submit a change offer, giving reasons where appropriate.
11.2If a change request by the client requires extensive examination, this will be agreed separately. keiltronic GmbH may charge the client for the examination effort involved. The contractual adjustments to the agreed conditions and development services required for an examination and/or a change will be set down in writing in a change agreement.
11.3Delivery times and performance obligations are extended by the calendar days on which keiltronic GmbH examines change requests, prepares change offers, conducts negotiations with the client on change offers or, as a consequence of the change request, interrupts project realisation at the client’s request, plus a reasonable restart period.
11.4If no agreement is reached on a change offer within a period of four weeks, or if for technical, organisational or economic reasons no offer corresponding to the client’s change request can be made, keiltronic GmbH continues to perform the contract on the originally agreed conditions.
11.5If the circumstances underlying the contractual relationship undergo a material change not taken into account by the provisions of the development contract or the order confirmation, both parties are entitled to demand an adjustment of the contract to the changed circumstances.
11.6If it becomes apparent during performance of the contract that the order can only be carried out at high additional cost which was not recognisable at the start of the work and for which neither keiltronic GmbH nor the client is responsible, keiltronic GmbH will notify the client without delay. The client may demand the immediate cessation of the work and terminate the development contract or the order confirmation. If the client wishes the work to continue, it shall notify keiltronic GmbH in writing. The client thereby agrees to the resulting increase in remuneration and a corresponding postponement of the completion date. In the event of termination of the development contract or the order confirmation, the client shall compensate keiltronic GmbH for all services performed up to that time.
§ 12 Default and other disruptions in the provision of services
12.1Insofar as a cause for which keiltronic GmbH is not responsible, including strike or lockout, impairs adherence to deadlines, keiltronic GmbH may demand a reasonable postponement of the deadlines. If the effort increases due to a cause within the client’s sphere of responsibility, keiltronic GmbH may also demand remuneration for the additional effort.
12.2If the client is in default of payment vis-à-vis keiltronic GmbH, keiltronic GmbH is entitled, after setting a reasonable deadline, to withdraw from or terminate the development contract or the order confirmation and to assert the damage incurred (e.g. lost profit, working time expended in vain).
§ 13 Set-off
Set-off by the client is permissible only if it is announced in writing one month in advance and relates to undisputed claims or claims established by final judgment. The declaration of set-off must be made in writing and must precisely identify the claim and the counterclaim.
§ 14 Right of retention
A right of retention on the part of the client is possible only in respect of a claim arising from the same contractual relationship.
§ 15 Rights of use
15.1The client is entitled to use the products for the intended purpose after full payment of all outstanding claims of keiltronic GmbH.
15.2All concepts, architectures, designs and software programs used by keiltronic GmbH in the course of the development service, as well as the skills, abilities and methods contributed by keiltronic GmbH, remain with keiltronic GmbH together with the associated rights. keiltronic GmbH grants its client a non-exclusive right of use in this respect, insofar as this is necessary for using the work results of the development service.
15.3A right of use granted by keiltronic GmbH is transferable to third parties only with the prior written consent of keiltronic GmbH. The granting of sub-licences, the temporary provision of the work results to third parties and making them accessible in any other way likewise require the prior written consent of keiltronic GmbH.
15.4All other rights of use remain with keiltronic GmbH, which is entitled to exploit the products in other ways as well, insofar as this has not been contractually excluded in writing.
§ 16 Copyright / trademarks
16.1The client receives a non-transferable right to use the delivered product and the expertise imparted with it for the contractually agreed purpose and the agreed contractual duration.
16.2All further rights, such as reproduction, distribution and the like, are not transferred. All copyrights in the product, including the partial products derived from it, and in the associated documentation remain the property of keiltronic GmbH.
16.3In the event of a breach of these rights, in particular in the event of unauthorised disclosure or transfer of use to third parties, keiltronic GmbH may demand payment by the client of a contractual penalty amounting to three times the value of the agreed fee. The assertion of a higher damage actually incurred remains unaffected. Without a further agreement, the client is not entitled to pass on the documents provided to third parties, to use them itself for further development, or to make or have made products on the basis of these documents.
§ 17 Miscellaneous
17.1Amendments to the development contract or the order confirmation must be made in writing.
17.2Unless agreed otherwise, the place of performance is the registered office of keiltronic GmbH.
17.3If the client is a merchant within the meaning of the German Commercial Code, a legal person under public law or a special fund under public law, the place of jurisdiction for all rights and obligations of the contracting parties arising from transactions is the registered office of keiltronic GmbH. The same applies if the client has no general place of jurisdiction in Germany, moves its domicile or habitual residence out of Germany after conclusion of the contract, or if its domicile or habitual residence is unknown at the time the action is brought. keiltronic GmbH is, however, also entitled to sue the client at the client’s general place of jurisdiction.
17.4German law applies, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
17.5Should one or more provisions of these terms and conditions, or a provision within the framework of other agreements, be or become invalid, the validity of all other provisions or agreements shall not be affected thereby. Invalid or missing clauses shall be replaced by valid clauses which come closest to the intended purpose.