GENERAL TERMS AND CONDITIONS OF FAKT GMBH
For agreed services, especially testing, consulting and expert activities
1. General scope of application
1.1
We provide technical services in the area of transportation and vehicles, in the form of testing, measurements and expert activities in particular. 1.2
The customer shall accept the General Terms and Conditions that are applicable on the date of the order and our prices. Any deviating, conflicting or supplementing general terms and conditions of the customer shall not become part of the contract even if they are known to us. These General Terms and Conditions shall also apply to any future orders unless they are revoked. 1.3
Any supplementary agreements, commitments and other declarations by our employees shall be binding only if they are expressly confirmed by us in writing or by email. This shall also apply to any amendments to this clause. 2. Contract Execution 2.1
The orders accepted by us shall be executed and/or the expert opinions shall be prepared in accordance with state-of-the-art technology and, unless otherwise agreed upon in writing, handled based on our usual practices. 2.2
The scope of our work shall be specified in writing when the order is placed, particularly by means of our offer. If any changes or extensions arise with respect to the specified scope of the order during its proper execution, these shall be agreed upon additionally in writing or by email and shall be remunerated separately. 3. Warranty and liability 3.1
Our warranty only includes the services that have expressly been ordered from us. We shall not provide a warranty for the correctness and functioning of the concerned items to be tested or the overall system to which the items to be inspected or tested belong. In particular, we shall not bear any liability for the design, function, material selection and construction of the inspected or tested items. 3.2
Our warranty is initially limited to the subsequent performance of the ordered services within an appropriate period. If the subsequent performance fails twice, the customer shall be entitled to reduce the remuneration or rescind the contract, at the discretion of the customer. 3.3
The warranty period shall be one year from the transfer of risk, i.e. from the handover of the results or products to the customer. 3.4
We shall bear liability for the service being suitable for the purposes of the customer only if our service is deficient and the fault is attributable to us or if we have submitted a corresponding guarantee. Any liability for consequential damages due to the defect from breach of duty or with reference to a quality warranty is excluded, unless we have acted intentionally or with gross negligence. 3.5
If our company can be held liable in accordance with our General Terms and Conditions – particularly when taking into considerations the provisions in section 4. below - our liability shall be limited to € 50,000 for property damage and € 50,000 for financial losses for each order. 3.6
The above limitations of liability shall also apply to our liability for our employees or other vicarious agents. 4. Additional liability; force majeure; failure to meet deadlines 4.1
Except in cases of intention, gross negligence, bodily injury or liability under the German product liability act, any additional claims of the customer for direct and indirect damage – irrespective of their legal grounds – shall be excluded to the extent they exceed the liability and warranty assumed by us under these General Terms and Conditions.
This shall also apply with respect to our liability for our employees and other vicarious agents.
This provision shall also apply in particular to the items provided by the customer for executing the order. 4.2
We do not assume any liability for damage arising from force majeure. Force majeure shall include any unforeseeable events that cannot be averted by exercising due care, such as power failures, fire, explosions or similar at our company through no fault of our own. 4.3
If we exceed the deadlines we have stated in our offers for the fulfilment of the services to be executed by us, we shall be liable in the framework of the regulations in our General Terms and Conditions only if we are responsible for the reasons for exceeding the deadline.
We shall not assume liability especially if the deadlines were exceeded due to changes or additions to the original scope of work. 4.4
Irrespective of this fact, the customer is bound to effect the usual insurances against direct or indirect damages.
We provide technical services in the area of transportation and vehicles, in the form of testing, measurements and expert activities in particular. 1.2
The customer shall accept the General Terms and Conditions that are applicable on the date of the order and our prices. Any deviating, conflicting or supplementing general terms and conditions of the customer shall not become part of the contract even if they are known to us. These General Terms and Conditions shall also apply to any future orders unless they are revoked. 1.3
Any supplementary agreements, commitments and other declarations by our employees shall be binding only if they are expressly confirmed by us in writing or by email. This shall also apply to any amendments to this clause. 2. Contract Execution 2.1
The orders accepted by us shall be executed and/or the expert opinions shall be prepared in accordance with state-of-the-art technology and, unless otherwise agreed upon in writing, handled based on our usual practices. 2.2
The scope of our work shall be specified in writing when the order is placed, particularly by means of our offer. If any changes or extensions arise with respect to the specified scope of the order during its proper execution, these shall be agreed upon additionally in writing or by email and shall be remunerated separately. 3. Warranty and liability 3.1
Our warranty only includes the services that have expressly been ordered from us. We shall not provide a warranty for the correctness and functioning of the concerned items to be tested or the overall system to which the items to be inspected or tested belong. In particular, we shall not bear any liability for the design, function, material selection and construction of the inspected or tested items. 3.2
Our warranty is initially limited to the subsequent performance of the ordered services within an appropriate period. If the subsequent performance fails twice, the customer shall be entitled to reduce the remuneration or rescind the contract, at the discretion of the customer. 3.3
The warranty period shall be one year from the transfer of risk, i.e. from the handover of the results or products to the customer. 3.4
We shall bear liability for the service being suitable for the purposes of the customer only if our service is deficient and the fault is attributable to us or if we have submitted a corresponding guarantee. Any liability for consequential damages due to the defect from breach of duty or with reference to a quality warranty is excluded, unless we have acted intentionally or with gross negligence. 3.5
If our company can be held liable in accordance with our General Terms and Conditions – particularly when taking into considerations the provisions in section 4. below - our liability shall be limited to € 50,000 for property damage and € 50,000 for financial losses for each order. 3.6
The above limitations of liability shall also apply to our liability for our employees or other vicarious agents. 4. Additional liability; force majeure; failure to meet deadlines 4.1
Except in cases of intention, gross negligence, bodily injury or liability under the German product liability act, any additional claims of the customer for direct and indirect damage – irrespective of their legal grounds – shall be excluded to the extent they exceed the liability and warranty assumed by us under these General Terms and Conditions.
This shall also apply with respect to our liability for our employees and other vicarious agents.
This provision shall also apply in particular to the items provided by the customer for executing the order. 4.2
We do not assume any liability for damage arising from force majeure. Force majeure shall include any unforeseeable events that cannot be averted by exercising due care, such as power failures, fire, explosions or similar at our company through no fault of our own. 4.3
If we exceed the deadlines we have stated in our offers for the fulfilment of the services to be executed by us, we shall be liable in the framework of the regulations in our General Terms and Conditions only if we are responsible for the reasons for exceeding the deadline.
We shall not assume liability especially if the deadlines were exceeded due to changes or additions to the original scope of work. 4.4
Irrespective of this fact, the customer is bound to effect the usual insurances against direct or indirect damages.
5. Remuneration and terms of payment
5.1
The remuneration for our services shall be calculated based on the information provided in our offer. The prices mentioned in the respective offer shall not be binding till the final issue of the order. 5.2
We shall be entitled to request reasonable advance payments for the services to be provided by us and/or to issue partial invoices for the services already provided. Partial invoices need not be expressly designated as such. The receipt of an invoice shall not mean that the complete order has been invoiced. 5.3
The amounts invoiced by us shall become payable without deductions within 14 days from the date of issue. The customer shall be deemed in default if a written reminder is issued by our company or 30 days following the receipt of the invoice at the latest. During such default, we shall be entitled to receive from the customer interest at the amount of 8% above the applicable base rate annually for the outstanding invoiced amount. 5.4
The applicable legal VAT shall be added to the remunerations. The VAT shall be indicated separately on the invoice. 6. Early termination of the order If the order is terminated before the services assigned to us have fully been provided – e.g. due to termination by the customer or based on a mutual agreement to rescind – we shall be entitled to charge a remuneration for the services provided till such point of time. The amount of the remuneration for the provided services shall be calculated based on the ratio between the services actually provided and those not provided. For example, if we have provided 60% of the commissioned services by the date of termination of the order, we shall be entitled to 60% of the total agreed remuneration.
We shall also be entitled to charge a remuneration for the services not yet provided by the date of termination. Such remuneration shall correspond to the ratio between the value of the services not provided and the total price less any incurred expenses. The saved expenses shall be deemed to amount to a lump sum of 30%. 7. Confidentiality, copyright and data protection 7.1
We shall be entitled to file copies of written documents that have been provided to us by the customer for inspection and that are important for the implementation of the order. 7.2
If any expert opinions, test results, calculations or similar are prepared in the course of the implementation of the order, we shall grant the customer a non-exclusive, non-transferable licence to use the same, provided that this is necessary in accordance with the purpose specified in the contract. No other rights shall be included in such licence.
The customer shall also be entitled to use the expert opinions, results, calculations or the like prepared by us outside its company in business. It may only use the “FAKT” name or brand if it makes full use of the expert opinions, results, calculations etc. prepared by us.
If the customer modifies, processes or only uses excerpts of the expert opinions, results, calculations etc. prepared by us, it may not use the “FAKT” name or brand. 7.3
We shall not disclose and/or exploit any business and trade information of the customer that becomes known to us in carrying out our activities for purposes other than the implementation of the order without having been authorised to do so. 7.4
We shall process and use personal data exclusively for our own purposes. In doing so, we use data processing systems. We have taken technical and organisational precautions that ensure the safety of the data pools and data processing procedures. The employees in charge of such processing have undertaken and been instructed in accordance with the provisions of the Federal Data Protection Act (Bundesdatenschutzgesetz) to strictly comply with any and all provisions regarding data protection. 8. Final provisions 8.1
These General Terms and Conditions shall be governed by the laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG). 8.2
The place of jurisdiction for the assertion of claims by any of the parties shall be Memmingen. 8.3
The place of performance for any and all obligations under these General Terms and Conditions shall be Heimertingen, the domicile of our company.
The remuneration for our services shall be calculated based on the information provided in our offer. The prices mentioned in the respective offer shall not be binding till the final issue of the order. 5.2
We shall be entitled to request reasonable advance payments for the services to be provided by us and/or to issue partial invoices for the services already provided. Partial invoices need not be expressly designated as such. The receipt of an invoice shall not mean that the complete order has been invoiced. 5.3
The amounts invoiced by us shall become payable without deductions within 14 days from the date of issue. The customer shall be deemed in default if a written reminder is issued by our company or 30 days following the receipt of the invoice at the latest. During such default, we shall be entitled to receive from the customer interest at the amount of 8% above the applicable base rate annually for the outstanding invoiced amount. 5.4
The applicable legal VAT shall be added to the remunerations. The VAT shall be indicated separately on the invoice. 6. Early termination of the order If the order is terminated before the services assigned to us have fully been provided – e.g. due to termination by the customer or based on a mutual agreement to rescind – we shall be entitled to charge a remuneration for the services provided till such point of time. The amount of the remuneration for the provided services shall be calculated based on the ratio between the services actually provided and those not provided. For example, if we have provided 60% of the commissioned services by the date of termination of the order, we shall be entitled to 60% of the total agreed remuneration.
We shall also be entitled to charge a remuneration for the services not yet provided by the date of termination. Such remuneration shall correspond to the ratio between the value of the services not provided and the total price less any incurred expenses. The saved expenses shall be deemed to amount to a lump sum of 30%. 7. Confidentiality, copyright and data protection 7.1
We shall be entitled to file copies of written documents that have been provided to us by the customer for inspection and that are important for the implementation of the order. 7.2
If any expert opinions, test results, calculations or similar are prepared in the course of the implementation of the order, we shall grant the customer a non-exclusive, non-transferable licence to use the same, provided that this is necessary in accordance with the purpose specified in the contract. No other rights shall be included in such licence.
The customer shall also be entitled to use the expert opinions, results, calculations or the like prepared by us outside its company in business. It may only use the “FAKT” name or brand if it makes full use of the expert opinions, results, calculations etc. prepared by us.
If the customer modifies, processes or only uses excerpts of the expert opinions, results, calculations etc. prepared by us, it may not use the “FAKT” name or brand. 7.3
We shall not disclose and/or exploit any business and trade information of the customer that becomes known to us in carrying out our activities for purposes other than the implementation of the order without having been authorised to do so. 7.4
We shall process and use personal data exclusively for our own purposes. In doing so, we use data processing systems. We have taken technical and organisational precautions that ensure the safety of the data pools and data processing procedures. The employees in charge of such processing have undertaken and been instructed in accordance with the provisions of the Federal Data Protection Act (Bundesdatenschutzgesetz) to strictly comply with any and all provisions regarding data protection. 8. Final provisions 8.1
These General Terms and Conditions shall be governed by the laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG). 8.2
The place of jurisdiction for the assertion of claims by any of the parties shall be Memmingen. 8.3
The place of performance for any and all obligations under these General Terms and Conditions shall be Heimertingen, the domicile of our company.