General Terms and Conditions of Bartels Mikrotechnik GmbH
1. The following terms and conditions shall apply to all quotations, sales, supply and work contracts of Bartels Mikrotechnik GmbH, including consultancy, assembly and other contractual services. Any deviations from these terms and conditions, any verbal collateral agreements, and any assurances shall only be valid if confirmed in writing by Bartels Mikrotechnik GmbH.
2 The contracting party’s terms and conditions shall not be valid, even if they have not been expressly contradicted.
II Offer and conclusion of contract
1. the period of commitment of offers made by Bartels Mikrotechnik GmbH shall be based exclusively on the period stated in the offer. If no such period is stated in the offer, the offer shall be deemed to be subject to change without notice.
2. a contract shall be concluded when the customer places an order, etc. on the basis of the quotation submitted by Bartels Mikrotechnik GmbH. If the customer requests a service that deviates from the quotation, this shall require express written confirmation from Bartels Mikrotechnik GmbH. In all other respects the quotation shall describe, in accordance with the requirements of the individual case, the terms of reference with regard to the specific application, the content and scope of the work, the period of time for which the work is to be carried out, and the testing, development or production objective.
III Prices, Payments, Due Date, Default
1. prices are usually calculated specifically for the individual case. In general, a base amount and a further cost portion depending on the type of processing and the number of pieces can be assumed. The base amount takes into account costs for design, programming, mask costs and any fixtures that may be required. The unit costs depend essentially on the type of material, the desired geometry, in particular the total quantity of material to be unloaded, the required tolerances and the desired QA measures. The basis for the calculation is the existence of a precisely known design and the material requirements. If it should transpire only after the contract has been concluded that these requirements have changed or that a miscalculation was made through no fault of Bartels Mikrotechnik GmbH, Bartels Mikrotechnik GmbH shall no longer be bound by the quoted pricing. The calculation of development work for the creation of designs (prototypes) shall be carried out separately.
2 Unless otherwise agreed, prices shall be ex Bartels Mikrotechnik GmbH’s works plus value-added tax at the statutory rate. Bank charges, especially in the case of foreign payments, shall be borne by the customer and the payment amount shall be increased by the corresponding sum.
3. payment shall be made net within 14 days of the invoice date to the account of Bartels Mikrotechnik GmbH.
4. in individual cases advance payments may be demanded by individual agreement.
5. if the service to be rendered by Bartels Mikrotechnik GmbH extends over more than 30 calendar days, Bartels Mikrotechnik GmbH shall be entitled to issue monthly partial invoices. Partial invoices shall be admissible in each case to the amount of 90% of the partial services rendered and shall be payable net within 14 days of the invoice being issued. If partial performances are acceptable, Bartels Mikrotechnik GmbH shall be entitled to invoice 100% of the partial performance accepted. 6.
In the event of failure to meet the payment dates, interest shall be payable at a rate of 8% above the prime rate at the time. We reserve the right to prove higher damages.
(7) The contracting partner of Bartels Mikrotechnik GmbH shall have a right of retention and a right of set-off only to the extent that the counterclaims are undisputed or have been established by a court of law.
8. if the contracting partner is in arrears with payment or if the claim is jeopardized by a deterioration in his creditworthiness, Bartels Mikrotechnik GmbH shall be entitled to call in claims irrespective of the term of any bills of exchange or agreed payment terms. In addition, it shall then be possible to carry out any outstanding deliveries or services only against advance payment or the provision of security.
IV. Retention of title
1. the goods, services and results supplied shall remain the property of Bartels Mikrotechnik GmbH (goods subject to retention of title) until all claims, including in particular the respective balance claims, to which Bartels Mikrotechnik GmbH is entitled against the customer in the course of the business relations have been settled.
2. the goods subject to retention of title shall be processed for Bartels Mikrotechnik GmbH as manufacturer within the meaning of § 950 of the German Civil Code (BGB) without any obligation on its part. The processed goods shall be deemed to be goods subject to retention of title. If the customer processes, combines, or mixes the goods subject to retention of title with other goods, Bartels Mikrotechnik GmbH shall be entitled to co-ownership of the new item in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods used. If Bartels Mikrotechnik GmbH’s ownership should lapse as a result of the goods being combined or mixed with other goods, the customer shall transfer to Bartels Mikrotechnik GmbH at the time the contract is concluded the rights of ownership to which it is entitled in the new stock or item to the extent of the invoice value of the goods subject to retention of title and shall hold them in safe custody for Bartels Mikrotechnik GmbH free of charge. 3.
The customer shall be entitled to resell the goods subject to retention of title only in the ordinary course of business, under his normal terms and conditions, and as long as he is not in default, provided that he agrees a retention of title with his customer and that the claims arising from the resale shall pass to Bartels Mikrotechnik GmbH. He shall not be entitled to dispose of the reserved goods in any other way. 4.
4 The use of the goods subject to retention of title for the performance of contracts for work and materials shall also be deemed to be a resale.
5. masks and other devices produced by Bartels Mikrotechnik GmbH shall remain the property of Bartels Mikrotechnik GmbH. If the size of the masks permits, a 2-year retention period may be agreed.
Insofar as acceptance by the contracting party is provided for at a later date when the order is placed, this shall take place immediately after Bartels Mikrotechnik GmbH has been notified that the work is ready for acceptance. If the contracting partner fails to carry out acceptance or to give qualified notification of any obstacles to acceptance within one month, the performance shall be deemed to have been accepted.
VI. Liability on the part of Bartels Mikrotechnik for infringement of the industrial property rights of third parties
1 The customer shall be obliged to instruct Bartels Mikrotechnik GmbH to carry out a patent search at his own expense. This is to ensure that the industrial property rights of third parties are not infringed. If the customer refuses to have a patent search carried out and does not commission it, Bartels Mikrotechnik GmbH shall not be liable for any infringement of the industrial property rights of third parties.
2. In addition, the following shall apply.
Any liability on the part of Bartels Mikrotechnik GmbH for infringement of third parties’ industrial property rights shall be excluded if the infringement of third parties’ industrial property rights has only arisen as a result of a modification of the goods by the customer. Bartels Mikrotechnik GmbH shall not be obliged to draw the customer’s attention separately to the possibility of infringement of industrial property rights by modification. If a third party asserts claims against the customer on account of the infringement of industrial property rights or copyrights (hereinafter referred to as: property rights) by the products or other services supplied by Bartels Mikrotechnik GmbH, and if the use of the products is impaired or prohibited as a result, Bartels Mikrotechnik GmbH shall, at its discretion and at its own expense, either modify or replace the products in such a way that they do not infringe the property right but nevertheless essentially comply with the agreed specifications, or indemnify the customer against licence fees for the use of the products vis-à-vis the third party. If this is not possible for Bartels Mikrotechnik GmbH under reasonable conditions, it shall take back the product against reimbursement of the remuneration paid. Bartels Mikrotechnik GmbH shall be entitled to demand reasonable compensation from the customer for the use of the product. 3.
If a product of Bartels Mikrotechnik GmbH is used by the customer in a way that could not have been foreseen by the contractor and that results in damage to the product or infringement of the industrial property rights of third parties, the contractor shall not be liable.
4. the preconditions for Bartels Mikrotechnik GmbH’s liability under Clause VI.1 are that the customer shall notify Bartels Mikrotechnik GmbH in writing without delay of any claims by third parties on account of an infringement of property rights, shall not acknowledge the alleged infringement, and shall conduct any dispute, including any out-of-court settlements, only in agreement with Bartels Mikrotechnik GmbH. If the customer discontinues the use of the product in order to minimize the damage or for other important reasons, he shall be obliged to point out to the third party that the discontinuation of use does not imply any acknowledgement of the infringement of the property right. 5.
(5) If the customer himself is responsible for the infringement of the property right, claims against Bartels Mikrotechnik GmbH pursuant to Clause VI.1. shall be excluded. The same shall apply if the infringement of industrial property rights is based on special specifications made by the customer, is caused by an application not foreseeable by Bartels Mikrotechnik GmbH, or is caused by the customer modifying the product or using it in conjunction with products not supplied by Bartels Mikrotechnik GmbH.
6 Any further claims on the part of the customer on account of an infringement of the industrial property rights of third parties shall be excluded. However, the customer’s right to withdraw from the contract shall remain unaffected for as long as he is prevented from using the product on account of the infringement of the industrial property rights of third parties.
1 Bartels Mikrotechnik GmbH warrants in all its services that scientific care will be exercised and that the recognized rules and the state of the art will be observed, but not that a research or development objective will actually be achieved. The agreed work shall be carried out by Bartels Mikrotechnik GmbH on this basis – any further liability for materials, material modifications due to machining, function of the parts, or other properties of the product properly manufactured in accordance with the agreed specifications shall therefore be excluded. If a product has defects in the form of deviations from the contractually agreed specifications, the customer’s claims shall be limited to rectification of the defect or delivery of a new product. If the rectification or the new delivery fails, both parties may withdraw from the contract. Alternatively, the Customer may also demand a reduction of the agreed remuneration. 2.
2 Bartels Mikrotechnik GmbH shall be notified without delay of the defects referred to in Clause VII.1. After acceptance of the goods by the customer has been carried out, the customer shall not be entitled to give notice of defects that were detectable during the agreed type of acceptance.
3 Any further rights on account of defects – in particular contractual or non-contractual claims for compensation for damage which has not occurred to the goods themselves – shall be excluded to the extent specified in Clause VIII; this exclusion of liability shall not apply in the absence of warranted characteristics if the very purpose of the warranty was to protect the customer against the damage which has occurred.
Bartels Mikrotechnik GmbH’s warranty shall be limited to six months vis-à-vis merchants and to 24 months vis-à-vis consumers after the product or the research or development result has been handed over. This shall also apply to warranty claims which are not subject to the statutory warranty periods.
VIII. Limitation of Liability
Claims for damages arising from delay as well as all contractual claims for damages that may be considered shall be limited to the value of the delivery.
Bartels Mikrotechnik GmbH’s liability shall be governed exclusively by the agreements made in the above sections. All rights not expressly granted therein, e.g. to rescission, termination, rescission of contract, or reduction in price, as well as to damages of any kind whatsoever, on whatever legal grounds, in particular also on account of impossibility, tort, positive breach of contract, culpa in contrahendo, shall be excluded. This exclusion of liability does not apply
– in case of intent
– in the event of gross negligence on the part of legal representatives or executive employees,
– in case of culpable violation of essential contractual obligations, insofar as the achievement of the purpose of the contract is jeopardized thereby
– in this case, however, liability shall be limited to compensation for foreseeable damage typical of the contract, unless one of the aforementioned cases applies.
– in the case of claims under the Product Liability Act
IX. Special regulations for research and development services
1 Execution and handling of research and development services
a) The customer and Bartels Mikrotechnik GmbH shall, after prior agreement, provide each other in good time with the information required for carrying out the research and development work and shall make available any documents, objects and aids that may be required in a condition suitable for the intended purpose or shall make them available for the duration of the work.
b) The objects and documents made available to Bartels Mikrotechnik GmbH by the customer shall be made available on loan. At the end of the contract these shall be returned to the customer unless otherwise agreed.
c) The results of the research and development shall be made available to the customer at the location of Bartels Mikrotechnik GmbH’s premises, unless otherwise agreed.
2 Publications, advertising
a) The customer shall be entitled to publish the results of the project. He shall inform Bartels Mikrotechnik GmbH of the publications as far as possible before they appear.
b) Bartels Mikrotechnik GmbH shall be entitled to publish basic scientific and technical statements which do not affect the customer’s interests.
c) The customer shall use the results for advertising purposes only with the express permission of Bartels Mikrotechnik GmbH.
d) After the order has been successfully completed the customer shall be included in Bartels Mikrotechnik GmbH’s list of references.
3. Rights to the research and development results
a) The research and development results shall be made available to the customer after completion of the project in accordance with the terms of reference.
b) Unless otherwise agreed, the intellectual property rights to the research and development result, and in particular the right to use it outside the specific contractual relationship, as well as all industrial property rights or copyrights that may come into consideration, shall remain with Bartels Mikrotechnik GmbH.
c) The customer may, with the express written consent of Bartels Mikrotechnik GmbH, be granted a non-exclusive, simple right of use to the inventions created during the execution of the project. In this case the customer shall reimburse Bartels Mikrotechnik GmbH, in addition to the licence fee to be agreed, for an appropriate share of the costs of registering, maintaining and defending the industrial property rights, as well as for any statutory employee inventor’s fees that may be incurred.
d) No exclusive rights to a subject of cooperation may be derived from a cooperation with partners. Bartels Mikrotechnik GmbH shall be free to work on other projects on the same subject in compliance with the respective confidentiality agreements.
Bartels Mikrotechnik GmbH and the customer shall not make available to third parties any information of a technical or commercial nature which they have mutually communicated and which is to be classified as confidential, either for the duration of the contractual relationship or after it has ended. This shall not apply to information which is generally accessible or which Bartels Mikrotechnik GmbH or the customer have waived in writing to be treated as confidential. Should a special confidentiality agreement be necessary in individual cases, this may also be concluded. Bartels Mikrotechnik GmbH shall keep a draft for this purpose available on a mutual basis.
EXW Dortmund according to Incoterms 2000
XII Other agreements
1. the place of performance for services shall be the registered office of Bartels Mikrotechnik GmbH.
2. in the event of individual provisions of the contract being ineffective, the remaining provisions shall remain effective.
3. the place of jurisdiction for all legal disputes, including proceedings relating to bills of exchange and cheques, shall be Dortmund.
(4) All legal relations between Bartels Mikrotechnik GmbH and the customer shall be governed exclusively by the law of the Federal Republic of Germany applicable to the legal relations of domestic parties.