§ 1 Scope of the General Terms and Conditions
1.1 The General Terms and Conditions - referred to as General Terms and Conditions - apply to all current and future business relationships as well as to all contracts concluded between Armbruster Engineering GmbH & Co. KG - hereinafter referred to as Armbruster Engineering - and the client or customer - hereinafter referred to as AG and/or called customer - must be concluded.
1.2 The general terms and conditions of the client are expressly contradicted.
1.3 Deviating, conflicting or supplementary general terms and conditions, even if Armbruster Engineering is aware of them, are not part of the contract, unless their validity has been expressly agreed to in writing by Armbruster Engineering . In the event that the client does not wish to accept the following general terms and conditions - General Terms and Conditions - he intends to declare this in writing to Armbruster Engineering at the latest upon conclusion of the contract.
§ 2 Conclusion of contract
2.1 Armbruster Engineering provides engineering services - hereinafter referred to as engineering services - in the form of independent and responsible execution of plans, designs, drawings, calculations, construction or production of prototypes, testing and approval support, series preparations, project support, development orders, development services as well as other engineering services from the entire range of services.
2.2 Armbruster Engineering's offers are always subject to change plus VAT at the applicable rate and are an invitation to place an order or accept the offer. The client's order is a binding order for the client.
2.3 Verbal additional agreements as well as any assurance of properties as well as any contractual changes or additions are only valid if these have been expressly confirmed in writing.
2.4 The client assigns Armbruster Engineering the execution of engineering services in accordance with Section 2.1 within the framework of the respective individual contract. The relevant contractual basis for the engineering services or deliveries is: the mutual written declarations from Armbruster Engineering and the client, if necessary with the client's specifications and CAD guidelines, if the client has them, as well as drawings, illustrations, constructions, plans provided by the client, Dimensions, weights or other performance data as well as the order confirmation from Armbruster Engineering, with which the scope of services is determined, if there is no order confirmation or written declarations on both sides, the written order of the client. The engineering service to be provided and, if applicable, the service delivery schedule and completion date are specified in the above-mentioned contractual principles. Otherwise, these terms and conditions apply.
2.5 As part of the contract initiation phase, Armbruster Engineering reserves unrestricted ownership and copyright exploitation rights to cost estimates, drawings and other documents or aids. Forwarding by the client to third parties in the contract initiation phase is not permitted without the written consent of Armbruster Engineering previously obtained by the client.
2.6 If the client requests changes or additions to the order after the order has been placed, Armbruster Engineering will check these and fulfill them to the extent possible , who provide these to the client with the right to additional remuneration at the applicable prices. The client accepts the postponement of the delivery date by a reasonable period of time resulting from this and not caused by Armbruster Engineering.
§ 3 Copyright/exploitation right, protected know-how
3.1 Armbruster Engineering grants the client, upon full payment for all contractual services developed or provided on behalf of the client, such as plans, drawings, models, tools or devices and other work results, the exclusive and unlimited right to use them in the manner described in the order. to use the scope determined by the purpose of the order.
3.2 In the event that Armbruster Engineering has also created individual software as part of its contractual obligations, Armbruster Engineering is not obliged to make the source code available to the customer.
3.3 If software is the subject of Armbruster's contract Engineering is provided, Armbruster Engineering grants the client the non-exclusive right to use it as intended with the subject matter of the contract. Reproduction, distribution and use of the software for purposes not specified in the contract are not permitted. If the client wishes this, it must be specified in a written agreement between the contracting parties and paid for separately by the customer. Any cancellation of this written form clause must be made in writing.
3.4 If employee inventions, suggestions for improvements and the like are made by employees of Armbruster Engineering or subcontractors when executing individual orders, Armbruster Engineering is obliged, at the request of the client, to make limited or unrestricted use of the invention. The resulting rights are to be transferred to the client step by step in exchange for exemption from any financial circumstances resulting from an employee invention towards employees of Armbruster Engineering or the subcontractor. The Employee Invention Act applies accordingly.
3.5 Armbruster Engineering also makes the provisions under section 3.1. The items listed constitute protected operational and business know-how. This applies in particular if data archived by Armbruster Engineering is transferred to another database software. This copying service represents proprietary technical know-how of Armbruster Engineering. The client is therefore not entitled to transfer such database software to third parties without the prior written consent of Armbruster Engineering. Third parties include any subsidiaries of the AG.
§ 4 Performance
4.1 Armbruster Engineering is entitled to award subcontracts for the provision of the contractual services.
4.2 If employees or agents of Armbruster Engineering work for the client, the client itself has no right to issue instructions to them. The right to issue instructions belongs exclusively to Armbruster Engineering.
4.3 Armbruster Engineering reserves the right to make product changes as necessary or make technical improvements to the extent that these are reasonable for the client in comparison to the subject matter of the order.
4.4 The prices are based on the applicable prices or those resulting from the individual offer as fixed prices. VAT and other statutory duties in the country of delivery as well as any costs for packaging, transport insurance or environmental handling flat rates and transport will be invoiced to the customer separately.
4.5 Armbruster Engineering reserves the right to increase the respective price appropriately if costs increase due to a change in the service requirement after the contract has been concluded by the client, by legal requirements for the engineering services or due to price increases due to exchange rate fluctuations at Armbruster Engineering. Armbruster Engineering will provide proof of these changes to the customer upon request. Minor changes to the engineering services are at the expense of Armbruster Engineering.
4.6 Subletting of the engineering services is only possible with the prior written consent of Armbruster Engineering. The reservation of consent also applies to the use of the engineering services of the client's subsidiaries or suppliers. The client assumes liability for this.
§ 5 Payment conditions
5.1 Unless another written agreement has been made, all invoices must be paid to Armbruster Engineering without deductions within 14 days of the invoice date upon receipt of payment by Armbruster Engineering in the currency stated on the invoice.
5.2 In the case of goods manufactured or adapted specifically for the client For software and/or hardware with an order value of over €20,000.00, Armbruster Engineering is entitled to charge a deposit of 30% upon receipt of the order, a further 30% upon delivery of the hardware, and a further 30% after commissioning. The remaining 10% must be paid at the latest after acceptance in accordance with 8.2. Other payment agreements require written confirmation from both contractual partners.
5.3 If no payment has been made within 30 days of the invoice amount being due, default will automatically occur. From this point on, the AG must pay interest on the invoice amount at the statutory interest rate set for entrepreneurs/merchants in Section 288 Paragraph 2 of the German Civil Code (BGB) of 8% above the current base interest rate of the European Central Bank - ECB.
5.4 Deadlines are not met and, based on the bank's consideration, there are doubts about the customer's solvency, Armbruster Engineering can at any time optionally demand performance from the client in return for cash payment, advance payment or security in the form of a guarantee or in some other way. In this case, all outstanding claims of Armbruster Engineering against the customer for which installment payments have been agreed or bills of exchange have been accepted will become due for payment immediately.
5.5 The client can only set off recognized or legally binding claims against the claims of Armbruster Engineering.
§ 6 Delivery and service conditions
6.1 Armbruster Engineering generally carries out the services for the client at Armbruster Engineering's headquarters. Shipping is therefore carried out at the risk and expense of the customer.
6.2 If Armbruster Engineering has to provide services and work, Armbruster Engineering determines the place where the service is to be provided.
6.3 The complete or partial execution in the client's company must be agreed separately in writing. The right to give instructions to its employees, in particular instruction, guidance and supervision, rests exclusively with Armbruster Engineering. The client will confirm the progress of the order based on the project status reports to Armbruster Engineering.
6.4 The performance date or the performance period is agreed based on the expected performance of Armbruster Engineering and is non-binding and subject to timely self-delivery and unforeseen circumstances and obstacles, in particular force majeure, government measures, non-granting of official approval, software errors through no fault of one's own as well as labor disputes and the like, insofar as between the No other written agreement has been made between the contracting parties. The aforementioned events extend the delivery date accordingly, even if they occur during a delay that has already occurred. In this case, a grace period set by the client is also extended by the duration of the unforeseen event. The client can - regardless of other withdrawal rights - withdraw from the contract in the event that the previously described events lead to a delay in performance of more than two months, provided that the delay in performance is not due to changes to the client's specifications.
6.5 Compliance with deadlines on the part of Armbruster Engineering requires that the client has made all necessary information, documents and data as well as the support for the execution of the order available to Armbruster Engineering or its employees and, if necessary, subcontractors, in a timely manner and free of charge. The client is responsible for the accuracy of the documents and information provided and is liable for ensuring that they are free of third-party intellectual property rights. Armbruster Engineering does not provide any compensation for damages caused by the client's inadequate obligation to cooperate.
6.6 In the event that a reasonable extension of the delivery period is necessary due to the scope of the provisions in Section 6.4 above. If the circumstances mentioned are unreasonable for Armbruster Engineering, Armbruster Engineering has the right to withdraw from the contract in whole or in part after prior notification. Claims for damages are mutually excluded in this case. Armbruster Engineering is exempt from the obligation to perform if due to the provisions under 6.4. Circumstances mentioned above, particularly in the event of force majeure, the provision or performance of the service is or becomes impossible or unreasonable.
6.7 Armbruster Engineering is entitled to make partial deliveries.
§ 7 Assembly services
7.1 If Armbruster Engineering's scope of services includes assembly services, the customer must provide the necessary auxiliary personnel, necessary items such as tools and computer time and the like, as well as energy, at his own expense. In addition, the customer ensures that Armbruster Engineering materials and tools can be safely stored at the assembly site.
7.2 Before the installation work begins, the customer must provide the necessary information about the location of completed electricity, gas and water pipes or similar systems as well as the required static information in good time and without being asked.
7.3 If installation or commissioning is delayed due to circumstances If the customer is responsible, he will bear the costs for downtime and additional time as well as any additional travel expenses required by Armbruster Engineering staff or subcontractors.
§ 8 Acceptance, transfer of risk
8.1 Upon delivery, the customer must check the service items immediately upon receipt for completeness and compliance with the contractual basis explained under § 2 of these General Terms and Conditions.
8.2 Armbruster Engineering is entitled to acceptance or partial acceptance of the services provided, provided they have been provided in accordance with the contract and can accept partial acceptance in each case require contractual delivery of the respective project stage. Within four weeks of written notification of the readiness for acceptance of the services or partial services provided, the client must accept them and sign an acceptance protocol to be drawn up or confirm the project status in writing and, if necessary, notify Armbruster Engineering in writing of any errors that may have occurred. If the client does not accept delivery within the aforementioned period, although he is obliged to do so, or if acceptance does not take place for reasons that are attributable to the client's area of risk, the service is deemed to have been put into use by the client no later than four weeks after notification of readiness for acceptance AG as accepted.
8.3 When delivering items as well as drawings, planning, etc. The risk passes to the customer upon dispatch or collection or upon delay in acceptance. In the case of work performance, the same applies to the time of acceptance or fictional acceptance.
§ 9 Retention of title
9.1 All services that Armbruster Engineering has to provide within the scope of the contractual obligation, including: Plans, calculations, prototypes, accompanying materials, project plans, data carriers and/or other materials remain the property of Armbruster Engineering at least until all claims arising from the contract have been fulfilled. If the contractual partner is a legal entity under public law, a special fund under public law or an entrepreneur exercising his commercial or independent professional activity, this also applies until the claims to which Armbruster Engineering is entitled from the ongoing business relationship in connection with the contract have been settled.
9.2 If the client defaults on payments for other future services provided by Armbruster Engineering or if the customer's assets decline, Armbruster Engineering can withdraw from the contract and is entitled to enter the client's business premises in the event of a claim for damages instead of performance and to take the reserved goods. In the event of compensation after return, Armbruster Engineering and the AG agree that this will be made at the usual market value of the contractual item at the time of return.
9.3 The assertion of the retention of title and the withdrawal of the grant of rights and the seizure of the delivery items by Armbruster Engineering are not considered Withdrawal from the contract if the client is a merchant.
9.4 If Armbruster Engineering delivers objects, data carriers, prototypes, CAD models, plans and other items to the client for testing and demonstration purposes, these remain the property of Armbruster Engineering or subject to the reservation of intellectual property rights. The client is entitled to use these for testing and demonstration purposes. Furthermore, use is prohibited unless a separate written agreement is reached with Armbruster Engineering.
§ 10 Subsequent performance and liability
10.1 Armbruster Engineering and the client are aware and agree that, given the state of the art, it is not possible to exclude software errors under all application conditions. Armbruster Engineering provides its services in accordance with the generally recognized rules of technology at the time the order is placed and with the care customary in the industry.
10.2 If defects occur, the client must immediately assert a claim to supplementary performance in writing. In the same way, objections to the engineered work must be raised in writing immediately, but no later than four weeks after receipt, and must be described in detail . If necessary, the client grants Armbruster Engineering the time and opportunity necessary at its reasonable discretion for supplementary performance.
10.4 If the client refuses this, Armbruster Engineering is exempt from supplementary performance. In addition, in the event of a defect, the client's statutory claims for defects apply, limited to the extent regulated in these General Terms and Conditions. 10.5 Under this condition, the warranty period is 24 months for software and 12 months for hardware. It begins at the time of delivery or transfer of risk or acceptance of the work.
10.6 The client is obliged to immediately inspect the services provided to him by Armbruster Engineering and to check for any deviations from the order volume and for defects. If deviations and defects are discovered, these must be reported to Armbruster Engineering immediately in writing.
10.7 If dimensions are the basis for Armbruster Engineering's performance, the dimensions specified on the data carriers, drawings, designs, etc. are the binding contractual basis. Furthermore, Armbruster Engineering is not liable.
10.8 If defects or deviations are reported by the client in a timely and proper manner, Armbruster Engineering is obliged to make improvements immediately. The contracting parties agree that Armbruster Engineering is entitled to rectify the same defect at least twice. Depending on the individual case, there may also be a further right to rectification. Armbruster Engineering has the right to make a replacement delivery instead of repair. In order to carry out any repairs or replacement services that appear necessary at its reasonable discretion, the client must provide sufficient time and opportunity to carry out the necessary measures at its place of business or at ArmbrusterEngineering's production site within normal working hours. If the repair fails repeatedly within a reasonable period of time, the client is entitled to either demand a reduction in the agreed remuneration or cancellation of the contract.
10.9 Armbruster Engineering's obligation to provide a guarantee presupposes that the client is aware of defects that are recognizable at the time of the transfer of risk or the acceptance, in the case of delivery, immediately complains in writing or, in the case of acceptance, notes this in the protocol or, in the case of hidden defects that only become apparent later, notifies Armbruster Engineering immediately after they are discovered.
10.10 Armbruster Engineering cannot assume any liability for this that the program functions and the design of the engineering service meet the client's further requirements or work together in the selection made by him, unless the requirements have been incorporated into the individual order by written agreement.
10.11 Excluded from the warranty and liability are, in particular, defects or . Damage that is attributable to improper use, operating errors and negligent behavior by the client or the persons attributable to him, the resulting products, fire, lightning, explosion or network-related overvoltage, incorrect or incorrect programs, software and/or processing data as well as any Consumable parts, unless the client proves that these are not the cause of the defect complained about. The warranty also does not apply in the event of interventions in the engineering services or other changes during the warranty period by anyone other than Armbruster Engineering and third parties authorized by Armbruster Engineering.
10.12 Warranty claims are not transferable Armbruster Engineering is entitled to demand reimbursement and invoice for all expenses, unless they are minor expenses.
§ 11 Liability
11.1 Armbruster Engineering is only liable for liability for damage to the client that was caused intentionally or through gross negligence by Armbruster Engineering employees and results from a breach of the duty of care.
11.2 Liability for slight or simple negligence is excluded. Armbruster Engineering is also not liable for unforeseeable damage, damage caused by defects, other indirect damage and damage from lost profits.
11.3 Claims for damages by the client expire after 24 months.
11.4 Liability of Armbruster Engineering only exists in the event of a breach of essential contractual obligations and on the basis of the contract conclusion foreseeable typical damage is limited.
11.5 If the damage is covered by insurance taken out by the customer, Armbruster Engineering is only liable for the disadvantages that arise from the customer's settlement of the damage, such as higher insurance premiums or interest disadvantages.
11.6 Armbruster Engineering's liability remains unaffected, regardless of whether There is negligence, in the case of fraudulent concealment of a defect, the assumption of a guarantee or under the Product Liability Act. The consequences of a delay in delivery are conclusively regulated in §6 of these conditions. The personal liability of the managing directors of Armbruster Engineering for vicarious agents and employees as well as engaged subcontractors for damage caused by them due to slight negligence is excluded.
11.7 Armbruster Engineering assumes no liability for data, lost profits or other direct or indirect consequential damages unless there is intent or gross negligence Negligence, no violation of essential contractual obligations and no case of lack of guaranteed properties on the part of Armbruster Engineering.
11.8 The amount of damages is limited to 20% of the amount per case of damage, except in cases of intentional gross negligence, especially in the case of simple negligence of essential contractual obligations of the order value, max. €50,000 or, in the case of a continuation, up to a maximum of €100,000.
§ 12 Confidentiality/Secrecy
12.1 The contracting parties undertake to make the documents and information provided to third parties as part of the contractual relationship accessible only with the consent of the other contracting party, unless delivery and services have been permissibly transferred to them. This confidentiality agreement does not apply if the documents and information provided are obviously known in advance or were subsequently demonstrably made available to the other party by a third party without breach of this confidentiality obligation. In the latter case, the respective contractual partner must be informed immediately in writing. The client undertakes to include its employees and any vicarious agents and subcontractors in this confidentiality agreement.
12.2 The confidentiality obligation also applies beyond the termination of the contractual relationship.
§ 13 Recruitment
13.1 The client undertakes not to poach any personnel from Armbruster Engineering during the performance of the order and for a subsequent period of one year, regardless of whether this is at the instigation of the employee or the client. The poaching or attempted poaching of Armbruster Engineering's workforce constitutes a gross breach of contract.
13.2 In the event of poaching, the client is obliged to pay a claim for damages in the amount of half the annual gross salary of the poached employee. For its part, Armbruster Engineering undertakes not to solicit employees of the client.
§ 14 Order cancellation
14.1 If the client terminates the contract without Armbruster Engineering being responsible for this, the client owes the full wages for the services provided up to the termination and, in addition, at least a further remuneration of 15% of the agreed wages for the work not performed due to the termination more services to be provided. Armbruster Engineering is free to assert further compensation claims within the framework of Section 649 Sentence 2 BGB.
§ 15 Changes
15.1 In the event of changes or other specifications after conclusion of the contract, which result in higher requirements and/or additional work for Armbruster Engineering, the prices and possible delivery dates must be re-agreed and determined. In this case, the client owes Armbruster Engineering appropriate remuneration for the services and expenses provided up to the change, which is based on the prices agreed up to that point.
§ 16 Place of jurisdiction
16.1 Place of performance for mutual services and – to the extent permissible – sole place of jurisdiction for all claims arising from or in connection with the contractual relationship is Bremen.
§ 17 Applicable law
17.1 German law applies exclusively.
§ 18 Data protection
18.1 Armbruster Engineering is entitled to process the data about the client arising from or in connection with the business relationship, regardless of whether this comes from the client itself or from third parties, in accordance with the applicable Federal Data Protection Act. This notice replaces the notice in accordance with the Federal Data Protection Act that personal data about the client will be stored and further processed using IT. Armbruster Engineering reserves the right to use projects/orders naming the client as a reference for its own advertising purposes, unless the client expressly objects to this use. Otherwise, the applicable legal provisions of the German Federal Data Protection Act and the data protection declaration of Armbruster Engineering GmbH & Co. KG apply.
§ 19 Final provisions
19.1 Changes and additions to the subject matter of the contract and these General Terms and Conditions must be in writing to be effective. This also applies to the effectiveness of the waiver of the written form clause or the written form requirement itself in individual cases.
19.2 The ineffectiveness of one or more provisions of these General Terms and Conditions does not affect the effectiveness of the remaining provisions. The contractual partners will replace or supplement the ineffective or incomplete provisions with appropriate, effective provisions that correspond to the economic purpose of the intended provision.
