Table of Content
General Terms and Conditions of Memetis GmbH
I. General information
1. The following conditions apply to all offers, sales, delivery and work contracts of Memetis GmbH, including consulting, assembly and other contractual services. Deviations from these conditions, verbal subsidiary agreements and assurances require written confirmation by Memetis GmbH in order to be valid.
2. Terms and conditions of the contractual partner are not valid, even if they have not been expressly contradicted. They shall only become part of the contract if they have been expressly agreed in writing.
3. If framework agreements have been concluded between the parties, these shall have priority. They shall be supplemented there by the present terms and conditions of delivery and performance, insofar as no special provisions have been made.
II. Offer and Conclusion of Contract
1. The binding period of offers made by Memetis GmbH is based exclusively on the time stated in the offer. If such a time is not included in the offer, the offer is generally considered to be subject to change.
2. The conclusion of a contract takes place with the placement of the order, purchase order, etc. by the customer on the basis of the offer submitted by Memetis GmbH. If the customer requests a service that deviates from the offer, this requires the express written confirmation of Memetis GmbH. In other respects, the offer shall describe the task with regard to the concrete application purpose, content and scope of the work, the processing period and the testing, development or production objective in accordance with the requirements of the individual case.
III. Prices, payments, due date, delay
1. Deliveries and services shall be made at the prices and conditions contained in the delivery contract/offer or the order confirmation of Memetis GmbH. The prices stated therein are binding. Additional or special services will be charged separately.
2. Unless otherwise agreed, prices are ex works of Memetis GmbH plus value added tax at the respective statutory rate. Bank charges, especially for foreign payments, are to be paid by the customer and the payment amount is to be increased by the corresponding amount.
3. Payment must be made net within 14 days of the invoice date to the account of Memetis GmbH.
4. In individual cases, advance payments may be requested by individual agreement.
5. If the service to be rendered by Memetis GmbH extends over more than 30 calendar days, Memetis GmbH is entitled to issue monthly partial invoices. Partial invoices are permissible in each case in the amount of 90% of the partial services rendered and are payable net within 14 days of invoicing. If partial services are eligible for acceptance, Memetis GmbH is entitled to invoice 100 % of the accepted partial service.
6. In the event of non-compliance with the payment dates, interest in the amount of 8 % above the respective base interest rate shall become due. We reserve the right to prove higher damages.
7. The contractual partner of Memetis GmbH is only entitled to a right of retention and a right of set-off insofar as the counterclaims are undisputed or have been legally established.
8. In the event of delay of payment by the contractual partner or if the claim is endangered by deterioration of creditworthiness, Memetis GmbH is entitled to call in claims regardless of the term of any bills of exchange or agreed payment terms. In addition, there is then the possibility of executing outstanding deliveries or services only against advance payment or provision of security.
IV. Delivery and delivery time
1. Agreed delivery dates or dates of performance are not binding, unless, expressly stated otherwise in the written order confirmation, in the delivery call-off, in the offer or in the contract.
2. The delivery period shall commence with the dispatch of the order confirmation, but not before the customer has provided the items, documents, approvals, releases to be procured by the customer and not before receipt of an agreed down payment. If components to be provided by the customer are not delivered at the agreed time or are not delivered free of defects, the delivery period shall be extended by one month for each month commenced plus one further month.
V. Retention of title
1. The delivered goods, services and results remain the property of Memetis GmbH (reserved goods) until all claims, in particular also the respective balance claims, to which Memetis GmbH is entitled against the customer within the scope of the business relations have been fulfilled.
2. Treatment and processing of the reserved goods shall be carried out for Memetis GmbH as manufacturer within the meaning of § 950 BGB (German Civil Code), without obligating it. The processed goods shall be deemed to be goods subject to retention of title. In the event of processing, combination and mixing of the reserved goods with other goods by the customer, Memetis GmbH is entitled to co-ownership of the new item in the ratio of the invoice value of the reserved goods to the invoice value of the other goods used. If the ownership of Memetis GmbH expires due to combination or mixing, the customer shall transfer to Memetis GmbH already upon conclusion of the contract the ownership rights to which it is entitled in the new stock or item to the extent of the invoice value of the reserved goods and shall store them free of charge for Memetis GmbH.
3. The customer may only resell the reserved goods in the normal course of business, under his normal business conditions and as long as he is not in default, provided that he agrees a reservation of title with his customer and that the claims from the resale are transferred to Memetis GmbH. He is not entitled to dispose of the reserved goods in any other way.
4. The use of the reserved goods for the fulfillment of contracts for work and services and contracts for work and materials is also deemed to be a resale.
VI. Passing of risk and acceptance/reception
1. The place of performance for all obligations arising from the contractual relationship is the registered office of Memetis GmbH, unless otherwise specified. If Memetis GmbH is also responsible for installation, the place of performance is the location where the installation is to take place.
2. The method of shipment and packaging are subject to the dutiful discretion of Memetis GmbH.
3. The risk is transferred to the customer at the latest when the delivery parts are made available at Memetis GmbH, even if partial deliveries are made or Memetis GmbH has assumed other services, e.g. the shipping costs or delivery and/or installation.
4. Partial deliveries are permissible.
5. Insofar as a later acceptance by the contractual partner is planned when the order is placed, this must take place immediately after Memetis GmbH is notified of a service that is ready for acceptance. If no acceptance or qualified designation of any obstacles to acceptance is made by the contractual partner within one month, the service shall be deemed to have been accepted.
VII. Liability of memetis GmbH due to the infringement of third party property rights
1. The client is obliged to commission the company memetis GmbH to carry out a patent search at his own expense. This is to ensure that the property rights of third parties are not violated. If the customer refuses a corresponding patent search and does not commission it, liability of the company Memetis GmbH due to the infringement of third party property rights is excluded.
2. The following also applies:
a) Any liability of Memetis GmbH due to the infringement of third party property rights is excluded if the infringement of third party property rights has only arisen due to a modification of the goods by the customer. Memetis GmbH is not obligated to separately point out to the customer the possibility of infringement of property rights through modification. If a third party asserts claims against the customer due to the infringement of industrial property rights or copyrights (hereinafter: property rights) by the products or other services delivered by Memetis GmbH and if the use of the products is impaired or prohibited as a result, Memetis GmbH shall, at its discretion and at its expense, either modify or replace the products in such a way that they do not infringe the property right, but still essentially comply with the agreed specifications, or indemnify the customer from license fees for the use of the products vis-à-vis the third party. If this is not possible for Memetis GmbH under reasonable conditions, it must take back the product against reimbursement of the remuneration paid. Memetis GmbH may demand reasonable compensation from the customer for the use of the product.
b) If a product of Memetis GmbH is used by the customer in a manner unforeseeable for the contractor, which leads to damage to the product or infringement of third party property rights, liability of the contractor is excluded.
c) Prerequisites for the liability of Memetis GmbH according to Clause VII.1 are that the customer notifies Memetis GmbH immediately in writing of claims by third parties due to an infringement of property rights, does not acknowledge the alleged infringement and conducts any dispute, including any out-of-court settlements, only in agreement with Memetis GmbH. If the customer discontinues use of the product for reasons of mitigation of damages or other important reasons, he is obligated to point out to the third party that discontinuation of use does not imply acknowledgement of the infringement of property rights.
d) Insofar as the customer himself is responsible for the infringement of property rights, claims against Memetis GmbH are excluded in accordance with Section VII.1. The same applies insofar as the infringement of property rights is based on special specifications of the customer, is caused by an application not foreseeable by Memetis GmbH or is caused by the fact that the product is modified by the customer or is used together with products not supplied by Memetis GmbH.
e) Further claims of the customer due to an infringement of third party property rights are excluded. However, the right of the customer to withdraw from the contract remains unaffected as long as the customer is prevented from using the product due to the conflicting property rights of third parties.
1. Memetis GmbH guarantees the application of scientific care and compliance with the recognized rules and the state of the art for all services, but not the actual achievement of a research or development goal. On this basis, the agreed work is carried out by Memetis GmbH - further liability for materials, material modifications due to processing, function of parts or other properties of the product properly manufactured according to the agreed specifications is therefore excluded. If a product has defects in the form of deviations from the contractually agreed specifications, the claims of the customer are limited to rectification or new delivery. 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. The defects mentioned in clause VIII. 1. must be reported to Memetis GmbH immediately. After the customer has carried out an acceptance of the goods, the notification of defects that were detectable during the agreed type of acceptance is excluded.
3. Further rights based on defects - in particular contractual or non-contractual claims for compensation for damages that did not occur to the goods themselves - are excluded to the extent specified in Clause VIII; this exclusion of liability does not apply in the absence of warranted characteristics if the purpose of the warranty was precisely to protect the customer against the damage that occurred.
4. The warranty of Memetis GmbH shall be limited to six months after delivery of the product or the research or development result vis-à-vis merchants and to 24 months vis-à-vis consumers. This also applies to warranty claims that are not subject to the statutory warranty periods.
IX. Limitation of Liability
1. Claims for damages arising from delay as well as all contractual claims for damages that come into consideration are limited to the value of the delivery.
2. The liability of Memetis GmbH is based exclusively on the agreements made in the above sections. All rights not expressly granted there, e.g. to withdrawal, termination, cancellation or reduction, as well as to damages of any kind, regardless of the legal grounds, in particular also due to impossibility, tort, positive breach of contract, culpa in contrahendo, are 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
X. Special provisions for research and development services
1. Execution and handling of research and development services
a) The Customer and Memetis GmbH shall, after prior agreement, provide each other with the information required for the performance of the research and development work in a timely manner and shall make available any required documents, objects and aids in the condition suitable for the intended purpose or provide them for the duration of the work.
b) The objects and documents provided to Memetis GmbH by the Customer shall be made available on loan. Upon termination of the contract, these must be returned to the Customer unless otherwise agreed.
c) The research and development results shall be made available to the Customer at the location of the Memetis GmbH business premises, unless otherwise agreed.
2. Publications, advertising
a) The Customer is entitled to publish the results of the project. He will inform Memetis GmbH of the publications before they appear, if possible.
b) Memetis GmbH is entitled to publish basic scientific and technical statements that do not affect the interests of the customer.
c) The customer will only use results for advertising purposes with the express naming of Memetis GmbH and with the latter's consent.
d) After successful completion of the order, the Customer will be included in the reference list of Memetis GmbH.
3. Rights to the research and development result
a) The research and development result will be made available to the Customer after completion of the project in accordance with the task description.
b) Unless otherwise agreed, the intellectual property rights to the research and development result and in particular the right to use it outside of the specific contractual relationship as well as all industrial property rights or copyrights that come into consideration remain with Memetis GmbH.
c) The Customer may be granted a non-exclusive simple right of use to the inventions created during the implementation of the project with the express written consent of Memetis GmbH. In this case, the Customer shall reimburse Memetis GmbH, in addition to the license fee to be agreed upon, an appropriate share of the costs for registration, maintenance and defense of the property rights, as well as any statutory employee inventor compensation.
d) No exclusive rights to a subject of the cooperation can be derived from a cooperation with partners. Memetis GmbH is free to work on other projects on the same topic in compliance with the respective confidentiality agreements.
1. Memetis GmbH and the Customer shall not make information of a technical or business nature that has been mutually communicated and is to be classified as confidential available to third parties during the duration and after the termination of the contractual relationship. This does not apply to information that is generally accessible or for which Memetis GmbH or the customer have waived confidential treatment in writing. Should a special confidentiality agreement be necessary in individual cases, this can also be concluded. Memetis GmbH has a draft available for this purpose on a mutual basis.
XII. Data Protection
1. The client takes note of the fact that the seller stores data from the contractual relationship according to § 28 Federal Data Protection Act for the purpose of data processing and reserves the right to transmit the data to third parties (e.g. insurance companies) as far as necessary for the fulfillment of the contract.
XIII. Other agreements
1. The place of performance for services is the registered office of Memetis GmbH.
2. In the event that individual provisions of the contract are invalid, the remaining provisions shall remain in effect.
3. The place of jurisdiction for all legal disputes, including bill of exchange and check processes, is Karlsruhe.
4. All legal relationships between Memetis GmbH and the customer shall be governed exclusively by the law of the Federal Republic of Germany applicable to the legal relationships of domestic parties.
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