General Terms and Conditions

comprising WTZ Roßlau gGmbH (non-profit limited liability company) and WTZ Motorentechnik GmbH (limited liability company)

Sect. 1 Scope of Application

The following conditions apply to all deliveries, services and offers of WTZ for use in commercial transactions with companies. This also applies to all future business relations, even if they are not expressly re-negotiated. At the latest with acceptance of deliveries or services, these conditions shall be deemed accepted.
Deviating, contradictory or supplementary conditions of the client are hereby rejected, unless WTZ agrees to their validity in writing.
To the extent that the following General Terms and Conditions do not provide for any other regulations, the legal provisions of the German Civil Code (BGB) that relate to the respective contractual relationship shall apply.

Sect. 2 Offer and Contract Object

(1) The subject matter of the order comprises the tasks described in the offer of WTZ or in the requirement specifications in the form of the written declaration of acceptance by the client and the written order confirmation by WTZ; drawings, illustrations, measurements, weights or other performance characteristics are only binding if they have been expressly agreed to in writing in the above form. The properties and conditions determined in these agreed technical specifications finally define the characteristics of the deliverables.

(2) The agreement of binding or non-binding performance deadlines and delivery dates requires the written form. WTZ shall not be responsible for delivery and performance delays, even in the event of binding deadlines and dates, if caused due to force majeure or events that not only temporarily make delivery or performance significantly more difficult or impossible for WTZ, in particular governmental orders, strikes, lockouts etc., even if these occur among the suppliers of WTZ or their subcontractors. In such a case, WTZ is entitled to postpone the deliveries and services by the duration of the delay, plus an appropriate scheduling period, or to withdraw from the contract in part or whole due to obligations which have not yet been fulfilled. An impairment of more than three months entitles the client, after a reasonable grace period, to withdraw from the contract with respect to the unfulfilled portion of deliverables. If the delivery time is extended or WTZ is released from its obligations, the client is not entitled to any claims for damages as a result. WTZ can only invoke this provision if it notifies the client without delay.

Sect. 3 Price and Remuneration

(1) Remuneration is calculated as a fixed price. In a departure from this provision, parties may agree that billing shall be carried out according to expenditure incurred, specifying the upper cost threshold. Remuneration is subject to any applicable statutory value-added tax.

(2) WTZ shall notify the client without delay if it is foreseeable that the contractually agreed remuneration is not sufficient to achieve the desired development result.
At the same time, WTZ shall propose to the client an adjustment of the agreed price. If this becomes necessary for reasons which were neither foreseeable for WTZ at the time the order was placed, nor is WTZ responsible for them and no other agreement is reached with the client, WTZ is entitled to withdraw from the contract.

Sect. 4 Payments

(1) Payments are due according to the agreed payment schedule. The client shall be considered in default without further declarations by WTZ if he/she has not paid within 10 days after the due date.

(2) In absence of a payment plan, the invoices of WTZ shall be payable 14 days after invoicing and receipt without deduction; also in this case, the client shall be considered in arrears without further explanation by WTZ if he/she has not paid within 10 days after the due date.

(3) The client shall only be entitled to set off or reduce the price, even if claims of defect or counterclaims are asserted, if the counterclaims have been legally established or are undisputed.

(4) In case defects exist, the client is entitled to a right of retention only if the service or delivery is clearly deficient or the client is obviously entitled to refuse acceptance of the work; in such a case, the client is only entitled to the right of retention to the extent that the retained amount is in reasonable proportion to the defects and anticipated costs of supplementary performance (in particular, rectification of defects). The client shall not be entitled to assert claims and rights due to defects if the client has not made due payments and the amount due is proportionate to the value of the defective delivery or service.

Sect. 5 Research and Development Result and Rights of Use

(1) The research and development result shall be made available to the client after completion of the order, according to the order content and requirement specifications. For the purpose of the application underlying the order, the client is granted a non-exclusive, free-of-charge right of use, originating from the performance of the order, of any inventions and scientific discoveries, and of industrial property rights which WTZ has applied for and which it has been granted. The client shall reimburse WTZ a negotiable share of the costs for the maintenance of the industrial property rights and shall pay lump-sum employees’ invention remuneration, the amount of which is agreed upon separately for each individual case.

(2) The granting of an exclusive, payable right of use for the client’s underlying purpose requires a separate agreement. The client shall notify WTZ in writing of his/her intention to conclude such an agreement within three months after learning of the invention. In the event such an agreement is concluded, WTZ expressly reserves a non-exclusive, free-of-charge right of use for research and development purposes.

(3) For the purpose of the application underlying the order, the client is granted a non-exclusive, free-of-charge right of use of the copyrighted works created, databases compiled and know-how arising during performance of the order. The granting of an exclusive right of use for the particular application requires a separate agreement.

(4) Inventions obtained jointly by the contracting parties during performance of the order (co-inventions) may be used and licensed individually by each contracting party without the reciprocal requirement for financial compensation of the other party.
The contractual parties shall each bear a negotiable proportion of the cost of maintaining, defending or registering the relevant industrial property right. Furthermore, there shall be no financial compensation for copyrighted works that are jointly created during the performance of the order (joint authorship rights).

(5) If existing industrial property rights of WTZ are exercised during order performance, which are necessary for marketing the development results by the client, the client shall receive for this a non-exclusive right of use subject to a fee to be negotiated separately, to the extent this does not conflict with any other obligation of WTZ.

Sect. 6 Industrial Property Rights of Third Parties

(1) WTZ shall notify the client of third-party industrial property rights that become known during the course of order performance, which could conflict with the usage rights agreed according to Section 5. The parties to the contract will jointly decide the manner in which these industrial property rights will be taken into account in the course of continued order processing.

(2) WTZ shall hold the client and his/her customer(s) harmless from claims arising from infringements of copyrights, trademarks or patents, unless

  1. a) despite WTZ’s notification, the client has decided to continue processing the order unchanged;
  2. b) the design of a delivery item originates from the client himself/herself. The exemption obligation of WTZ is limited in amount to any foreseeable damage.

A further prerequisite for the exemption is that WTZ is left control over legal disputes and that the alleged infringement is exclusively attributable to the construction of the goods delivered by WTZ without connection or use with other products.

(3) Optionally, WTZ may elect to exempt itself from the exemption obligation specified in paragraph 2 by either:

  1. a) procuring the necessary licenses for the allegedly infringing patents or
  2. b) making available to the client a modified delivery item or parts thereof which, in the event of an exchange of the infringing delivery item or its part, remedy the infringement claim with regard to the delivery item.

Sect. 7 Liability

(1) In case of doubt, statements by WTZ in connection with this contract (e.g. performance descriptions, reference to DIN standards, etc.) do not constitute the assumption of a guarantee. In the case of doubt, only express written statements by WTZ regarding the acceptance of a guarantee are definitive.

(2) WTZ shall be liable in cases of intent or gross negligence on its part or its agents or vicarious agents in accordance with the statutory provisions. Furthermore, WTZ is only liable under the Product Liability Act, due to injury to life, body, health, which are based on at least negligent breach of duty by WTZ or an intentional or grossly negligent breach of duty by its representatives or vicarious agents and due to the culpable violation of essential contractual obligations. However, the entitlement to claims for damages for the infringement of essential contractual obligations is limited to direct, contract-typical, average damage foreseeable according to the nature of the object of the order; this limitation also applies to the liability of WTZ in cases of gross negligence, if none of the exceptions listed in sentence 2 apply.

(3) Liability for damage caused by the delivered goods in legal goods of the client, e.g. damage to other items, is completely excluded, however. This does not apply in case of liability for intent or gross negligence or due to injury to life, body or health.

(4) The provisions of the preceding paragraphs (2) and (3) extend to claims for damages in addition to performance and compensation in lieu of performance, irrespective of the legal basis, in particular due to defects, breach of duty arising from the contractual relationship or tort. They also apply to the claim for reimbursement of futile expenses. Liability for default and impossibility are determined in accordance with paragraphs 5 and 6.

(5) WTZ assumes liability in case of a delay in performance in cases of intent or gross negligence on its part, or one of its representatives or vicarious agents, in accordance with the statutory provisions. The liability of WTZ in cases of gross negligence, however, is limited to foreseeable, contract-typical, direct average damage according to the nature of the object of the order, if none of the exceptions listed in sentence 5 of this provision apply. Furthermore, WTZ’s liability for damages in addition to and/or in lieu of performance is limited to 0.5% for each completed week of delay, but not more than 10% of the order value.
Further claims of the client are excluded – even after the expiry of any time limit WTZ has been provided for performance. The limitations listed above shall not apply to liability resulting from injury to life, body or health.

(6) To the extent that the delivery is impossible, WTZ shall be liable in cases of intent or gross negligence on its part, or one of its representatives or vicarious agents, in accordance with the statutory provisions. In cases of gross negligence, however, the liability of WTZ is limited to the foreseeable, contract-typical, direct average damage foreseeable in the nature of the object of the order, insofar as none of the exceptional cases listed in sentence 5 of this provision apply. Moreover, the client’s claim for damages and for reimbursement of futile expenses is limited to 10% of the value of the part of the delivery that cannot be used due to impossibility of performance. Any further claims of the client due to impossibility of delivery or performance are excluded. This limitation does not apply in cases of intent, gross negligence or injury to life, limb or health. The right of the client to withdraw from the contract shall remain unaffected.

Sect. 8 Warranty Period

(1) The limitation period for claims and rights due to defects of the goods and services, irrespective of the legal basis, is one year. However, this does not apply in the cases of Section 438 Subsection 1 No. 1 German Civil Code, Section 438 Subsection 1 No. 2 German Civil Code, Section 479 Subsection 1 German Civil Code or Section 634 a Subsection 1 No. 2 German Civil Code, which are subject to a limitation period of three years.

(2) The periods of limitation according to paragraph (1) shall also apply to all claims for compensation against WTZ associated with the defect – irrespective of the legal basis of the claim. Insofar as damage claims of any kind exist towards WTZ, which are not related to a defect, they are subject to the limitation period of paragraph (1) sentence 1.

(3) The limitation periods according to paragraph (1) and paragraph (2) shall apply, subject to the following provisions:

  1. a) The limitation periods generally do not apply in the case of intent.
  2. b) The limitation periods shall also not apply if WTZ has fraudulently concealed the defect or insofar as WTZ has assumed a guarantee for the nature of the deliveries and/or services. If WTZ has fraudulently concealed a defect, the statutory periods of limitation would apply in lieu of the periods of limitation mentioned in paragraph (1), which apply without the existence of fraudulent intent, under exclusion of the term extension in case of fraudulent intent pursuant to Sections 438 Subsection 3 and Section 634a Subsection 3 German Civil Code.
  3. c) The limitation periods shall also not apply to claims for damages in the cases of injury to life, limb or health or freedom, for claims under the Product Liability Act, gross negligent breach of duty or violations of essential contractual obligations.

(4) For all claims, the period of limitations begins with delivery, with research and development services – to the extent agreed – with acceptance, otherwise with handover.

(5) Unless otherwise expressly provided, the statutory provisions concerning the beginning of the limitation period, the suspension of the limitation period, the suspension and the new beginning of periods shall remain unaffected.

Sect. 9 Claims for Defects

(1) If WTZ’s operating or maintenance instructions are not followed, modifications are made to the products, parts are replaced, or consumables are used that do not correspond to the original specifications, claims for defects of the products are voided if the client does not refute corresponding substantiated claim that only one of the circumstances caused the defect.

(2) The client shall notify WTZ of defects in writing without delay, however no later than within one week after receipt of the WTZ delivery item. Defects which cannot be discovered within this period, despite careful inspection, shall be reported to WTZ in writing immediately upon discovery.

(3) Under no circumstances shall WTZ be obliged to make new deliveries or manufacture new products within the framework of supplementary performance. Rather, WTZ, at its option and at its expense, may require that

  1. a) the defective product is sent to WTZ for repair and subsequently returned to the client;
  2. b) the client shall make the defective part available for repair by WTZ technicians on site at the client’s facility. If the client requires that the repair work be carried out at a location determined by him/her, WTZ can meet this requirement, whereby exchanged parts are not invoiced, whereas working hours and travel costs are to be paid at WTZ standard rates.

(4) If rectification fails after a reasonable period, the client, at his/her discretion, may demand a reduction in the remuneration or withdraw from the contract.

(5) Furthermore, the right to terminate the contract in the case of a defect not based on breach of duty, for which WTZ is not responsible, is excluded.

(6) Claims for defects against WTZ are only available to the direct client and are not assignable.

Sect. 10 Retention of Title

(1) Up until fulfilment of all claims (including all outstanding balances from the current account) to which WTZ is entitled now or in the future for any legal reason towards the client, WTZ shall be granted the following collateral, which can be released on demand and on its own discretion, to the extent its value sustainably exceeds the claims by more than 20%.

(2) The ownership of the R&D result or manufactured product, as well as the use rights referred to in Section 5 shall only be transferred to the client upon full payment of all secured claims. Processing or conversion shall always carried out on behalf of, but without obligation to, WTZ as the manufacturer. If the (co-)property of WTZ expires as a result of a connection, it is now already agreed that the (co-)property of the client regarding the uniform item shall be transferred to WTZ on a proportionate basis (invoice amount). The client shall store the (co-)property of WTZ free of charge. Delivery items in which WTZ is entitled to (co-)property are referred to below as goods subject to retention of title.

(3) The client shall be entitled to process and sell goods subject to retention of title in the ordinary course of business as long as he/she is not in default. Pledges or collateral assignments are not permitted. The claims arising out of the resale or any other legal basis with respect to the goods subject to retention of title (including all balances due from the current account) are already fully assigned now by the client to WTZ for good measure. WTZ provides the client revocable authorisation to collect the claims assigned to WTZ on his/her own account in his/her own name. This direct debit authorisation can only be revoked if the client does not properly fulfil his/her payment obligations.

(4) In case of access by third parties to the goods subject to retention of title, liens in particular, the client shall make reference to the property of WTZ and inform WTZ without delay, so that WTZ can enforce its property rights. If the third party is not in a position to reimburse WTZ for the costs of judicial or extrajudicial costs incurred in this regard, the client shall be liable for this.

(5) In case of breach of duty by the client, in particular in the case of a delay in payment, WTZ shall also be entitled, even without setting a deadline, to demand handover of the delivery item and/or withdraw from the contract; the client is obliged to hand over the goods. In demanding return of the delivery item, there is no declaration of withdrawal by WTZ, unless this is expressly stated.

Sect. 11 Confidentiality / Publication

(1) During the period and for a period of five years after the end of the order, the client will not disseminate to third parties any information, rated as confidential, of a technical and commercial nature that was made available to him/her. However, this does not apply to information that was known or accessible to the client or to the public prior to notification by WTZ or that was known or accessible to the public after notification by WTZ without any involvement or fault on the client’s part, or that corresponds to information divulged or made available to the client by an authorised third party or independently developed by an employee of the client who had no prior knowledge of such information. Third parties within the meaning of this provision are not WTZ subcontractors who have been entrusted by WTZ to fulfil the order and to maintain confidentiality. If the client invokes any of the above exceptions, he/she bears the burden of proof.

(2) For each case of the culpable infringement of the obligation to maintain secrecy, WTZ is entitled to demand a lump-sum compensation claim of EUR 50,000.00. The client is allowed to prove that WTZ has not incurred any damage or a substantially lower loss. WZT reserves the right to provide documentation that the actual damage was higher.

(3) After prior consultation with WTC, the client has the right to publish the R&D findings, making reference to the copyright holder. The coordination is to be done in such a way that diploma theses, doctoral theses or applications of industrial property rights are not impaired. For advertising purposes, the client may use WTZ’s name only with its express consent. Publications of WTZ relating to a certain area of application are duly coordinated with the client, to the extent that the client has acquired the exclusive rights pursuant to Section 5.

Sect. 12 Final Provisions

(1) Any cancellation, amendment or addition to the contract shall only be valid if made in writing.
The law of the Federal Republic of Germany shall exclusively apply, with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods. The place of fulfilment and the place of jurisdiction shall be the registered office of the WTZ in the case of contracts with merchants.

(3) Should a provision in these General Terms and Conditions or a provision within the scope of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.