General Terms and Conditions of ITA GmbH
1 Scope of application
The following terms and conditions apply to all research, development and service contracts awarded to ITA GmbH. The order does not include legal, tax and insurance advice. Our contractual terms and conditions apply exclusively. The terms and conditions of our contractual partner shall not apply.
2. subject matter of the contract
a. The subject matter of the respective order is the work described in ITA GmbH's written offer and the client's written order confirmation. b. Additional services commissioned after the order has been placed, which are not included in this offer, will be invoiced separately on the basis of an additional offer.
3. processing time
If ITA GmbH's offer or the research and development order contains a specific processing time or deadlines, these are only to be regarded as binding if ITA GmbH has expressly confirmed them as binding.
4. remuneration
The remuneration shall be calculated as a fixed price. Value added tax shall be added to the remuneration in each case.
5. payments
a. Unless otherwise agreed, 50% of payments shall be made when the order is placed and 50% when the order is completed.
b. Invoices are to be paid within 14 days. Payments are to be made to the respective ITA GmbH account specified in the contract, stating the invoice number.
c. Offsetting against claims of ITA GmbH is only permitted in the case of undisputed or legally established claims which are also based on the same contractual relationship.
d. The contractual partner may only exercise a right of retention with regard to legally established claims and only if the counterclaim results from the same contractual relationship.
6. research and development results, rights of use
a. ITA GmbH and the client shall inform each other immediately of any reports of service inventions made in the course of work carried out under a joint contract by sending corresponding copies. If the client intends to make use of such inventions, ITA GmbH will make unlimited use of these inventions in accordance with the provisions of the Employee Inventions Act and transfer the rights acquired to the client or a third party named by the client to acquire property rights in their name and at their expense. If the client or the third party named by it is not interested in acquiring or continuing such property rights, ITA GmbH shall be free to release the corresponding inventions or to register them at its own expense and in its own name or, in the event that the client has initially acquired the property rights and lost interest in continuing them, to take them over from it, whereby the exploitation rights shall also be transferred to ITA GmbH or the persons then entitled.
b. ITA GmbH and the collaborating ITA may use their research results free of charge and without restriction for their own scientific purposes in research and teaching, as long as they do not violate their confidentiality obligations.
c. Employees of ITA GmbH or ITA involved in an invention must be named as inventors in invention disclosures. The research and development results made shall be treated in accordance with the statutory provisions of the German Employee Inventions Act.
For each invention claimed by the client, the client shall pay a lump sum of € 5000.00 to compensate the obligations of the contractor (ITA GmbH) in accordance with § 42 No. 4 ArbnErfG. If industrial property rights arise from the inventions or on the basis of the work carried out by ITA GmbH or its cooperation partner ITA, separate license agreements must be concluded in individual cases if the industrial property rights are exploited.
7. liability
a. ITA GmbH warrants the application of scientific diligence and compliance with the general rules of technology, but not the actual achievement of the research and development objective.
b. ITA GmbH's liability for negligent breaches of secondary obligations is limited to damages resulting from injury to life, limb or health, taking into account the statutory limitations of liability.
c. The client shall be liable for material damage to objects made available to the client by ITA GmbH during the execution of the order.
8. regulations for research and development activities under purchase contracts or contracts for work and services
a. If ITA GmbH owes the manufacture or delivery of a state-of-the-art item as a result of research or development on the basis of an express agreement, the corresponding provisions of the law on sales or contracts for work and services shall only apply in the event of defects in accordance with the following paragraphs.
b. Should the research and development result achieved by ITA GmbH be defective, ITA GmbH shall be given the opportunity to rectify the defect, possibly several times, by way of subsequent performance, at its discretion by repair or replacement.
c. If ITA GmbH refuses subsequent performance or if such subsequent performance fails or is unreasonable for the client, the client may, at its discretion, withdraw from the contract, reduce the remuneration accordingly or demand compensation. The right of withdrawal can only be exercised in the event of a significant defect. The right of withdrawal shall expire if the withdrawal is not declared within 14 days of receipt of the notification of the rejection or failure of the supplementary performance or after the time at which the client can recognize the unreasonableness of the supplementary performance.
d. If the item suffers from a defect of title due to the infringement of third-party property rights, ITA GmbH shall only be liable if these rights exist in the Federal Republic of Germany, the client uses the research and development result in accordance with the contract and to this extent justified claims are asserted by the third party and the client has informed ITA GmbH immediately in writing of the claims asserted by the third party. Subsequent performance shall then take place in such a way that ITA GmbH obtains the authorization for contractual use for the client or modifies the research and development result in such a way that affected third-party property rights are not infringed.
e. The client must inspect the research and development results delivered by ITA GmbH without delay and report any defects immediately. Claims for recognizable defects shall only exist if they are reported to ITA GmbH within 14 days of delivery or acceptance.
f. The limitation period for claims based on defects is governed by the following provisions.
g. If the customer makes advance payments under a framework agreement for the provision of certain services under an individual contract by ITA GmbH and these services are not provided in full, the payments previously made will not be refunded but credited to the customer. These payments will be offset against further performance under the framework agreement. The right to offset these payments shall lapse if the credited amount is not called up by the customer within two (2) years after one of the contracting parties has notified the other of the incompleteness of the service provided.
9. limitation period
a. Claims of the client for breach of duty and tort shall become time-barred within 12 months. This does not apply if the law in §§ 438 Para. 1 No. 2, 479 Para.1 and 634a Para. 1 No. 2 1st Alt. BGB prescribes longer periods and ITA GmbH is liable for intent or gross negligence.
b. If the contract provides for acceptance, the limitation period for claims for defects shall commence upon acceptance, otherwise upon handover.
c. The limitation period shall be suspended by negotiations between the contracting parties regarding claims or circumstances justifying such claims.
10. reservation of title
a. The client shall become the owner of the research and development results upon full payment of the remuneration. ITA GmbH retains ownership and rights of use until the purchase price has been paid in full. ITA GmbH's property and rights of use may not be transferred by way of security or pledged.
b. If ITA GmbH's ownership expires as a result of combining, processing or mixing, it is hereby agreed that ITA GmbH shall acquire ownership of the newly created uniform item on a pro rata basis until the remuneration has been paid in full.
c. In the event of resale, the client assigns all rights arising from the resale to ITA GmbH with effect in rem until the remuneration has been paid in full.
11. confidentiality
a. The contracting parties shall not disclose to third parties any information of a technical or commercial nature which has been disclosed to each other and declared secret or confidential or such information where the need for secrecy arises from the circumstances for the duration of the cooperation and for a period of five (5) years after termination of the contract and shall not exploit such information directly or indirectly without the prior express consent of the other party.
b. The confidentiality obligation shall not apply to such information that was already known or generally accessible to the other party, knowledgeable third parties or the public prior to the disclosure. This also does not apply to information that became known or generally accessible or in the public domain after the disclosure but without the cooperation or fault of the other contracting party. Information consisting of partial information, all of which falls under the above exemption, is only exempt from the obligation of confidentiality if it as a whole falls under at least one of the exemptions.
c. The confidentiality obligation described above applies mutatis mutandis to technical information.
d. These provisions apply to the contracting parties themselves, but also to all employees and third parties involved by them who act within the scope of the contract.
e. A third party within the meaning of this provision is not the Institute of Textile Technology at RWTH Aachen University, which is a cooperation partner of ITA GmbH.
f. Embodied business and trade secrets shall be returned to the other party at any time upon request, without retaining copies or other records. Information stored on electronic data carriers shall instead be irreversibly deleted, which shall be confirmed to the other party without delay. This does not apply to documents that must be archived.
g. The client agrees in principle that employees of the ITA of RWTH Aachen University, who are involved by ITA GmbH in the commissioned work and are employed at RWTH in the context of scientific work with the aim of obtaining a doctorate, may publish research and development results resulting from the cooperation in their scientific work. The client shall be informed in advance of any planned publication. He/she shall be given the opportunity to comment within a reasonable period of time, which shall not exceed eight (8) weeks from the submission of the text intended for publication. If the publication contains information that is detrimental to novelty or otherwise jeopardizes confidentiality in accordance with Section 11. a) and c), the client shall have the right to refuse consent to publication. In such a case, the Client and the Contractor shall immediately reach a separate agreement regulating the form and timing of an early publication, taking into account the interests of both parties worthy of protection.
12 Publication, advertising
The client is only entitled to name the research and development results with the author of the institute involved after prior approval by ITA GmbH. The agreement must be made in such a way that dissertations, diploma theses, master's theses, bachelor's theses and applications for industrial property rights are not jeopardized. The name of ITA GmbH may only be used in advertising with its express consent.
13. termination
a. The client and contractor may terminate the contractual relationship resulting from the placement of the order at any time for good cause. For ITA GmbH, such a reason exists in particular if the client violates its obligations arising from the GTC and the contract despite a reminder and the setting of a deadline, thereby making the execution of the order impossible or significantly more difficult.
b. After effective termination, ITA GmbH shall hand over to the client the research and development results achieved by the end of the notice period within four weeks. The client is obliged to reimburse ITA GmbH for the costs incurred up to the expiry of the notice period. Personnel costs shall be reimbursed on a time basis.
c. In the event that the termination is based on the behavior of one of the contracting parties, claims for damages remain unaffected.
14. other
a. Individually prepared offers are valid for 30 days.
b. The client undertakes to procure all records, documents and information necessary for ITA GmbH to fulfill the order at its own expense and to make them available to ITA GmbH in good time and in full.
c. Ancillary agreements, additions and amendments must be made in writing.
d. The contractual relationship arising from the placement of the order and its interpretation are subject exclusively to the substantive law of the Federal Republic of Germany.
e. Any invalidity of one or more provisions shall not affect the validity of the remaining provisions. This shall also apply in the event of a loophole.
f. The place of jurisdiction for disputes arising from the contractual relationship resulting from the placement of the order is Aachen.