GTC

General conditions for the execution of research and development contracts of ZeMA - Centre for Mechatronics and Automation Technology gGmbH

§ 1 Scope of application
The following conditions apply to all research and development contracts awarded to ZeMA - Zentrum für Mechatronik und Automatisierungstechnik gGmbH (ZeMA gGmbH). Deviating, conflicting or supplementary conditions of the customer do not become part of the contract, unless ZeMA gGmbH agrees to their validity in writing.

§ 2 Offer; Placement of order
(1) For the conclusion of the contract, a binding offer of ZeMA gGmbH in text form and an order confirmation of the customer in text form is required.
(2) If a service is required in the course of the performance of the order that is not provided for in the order or offer, ZeMA gGmbH will immediately inform the customer in text form. If the necessity or appropriateness of this service is determined, the necessary modification of the order shall be determined by mutual agreement and the corresponding remuneration shall be agreed at the same time.
(3) ZeMA gGmbH will only carry out a research with regard to relevant third-party rights (freedom to operate research) in the case of an explicit written commission. Otherwise, such a third-party rights search is not part of the research and development contract.
(4) Requests for changes communicated in text form at the request of the client will be carried out by ZeMA gGmbH in accordance with the available resources and against a corresponding increase in the fee (if this is justified by calculation) and adaptation of the schedule. This also applies to a detailing of the order communicated by the client, which includes a change in performance.

§ 3 Subject matter of the contract; deadlines
(1) The subject of the research and development contract are those included in the offer of the
ZeMA gGmbH included services.
(2) Insofar as the offer or the research and development order contains a processing time or deadlines, these shall only be considered binding if ZeMA gGmbH has expressly agreed to their liability. If ZeMA gGmbH recognises that the processing time declared binding or the deadline declared binding cannot be met, it will immediately inform the client, inform him of the reasons for the delay and agree on an appropriate adjustment in agreement with the client. The client may not refuse an adjustment without good cause, in particular if ZeMA gGmbH is not at fault.

§ 4 Execution of the work; Obligations to cooperate
(1) The project will be carried out in close contact between the contractors and in accordance with the work plan agreed according to the research and development mandate. ZeMA gGmbH will keep the client informed about the results and experiences of the research work covered by the contract in an appropriate form. The research and development results shall be summarised in a final report, where applicable and necessary.
(2) The client is obliged to support ZeMA gGmbH in the execution of the contract and to provide all necessary documents and information to ZeMA gGmbH. This must be done on time, so that ZeMA gGmbH can carry out the work without wasting time. The customer shall bear any damage or additional expenses incurred as a result of defective or inappropriate cooperation by the customer.

§ 5 Remuneration / Terms of payment
(1) The remuneration is calculated as a fixed price. By way of derogation, the contracting parties may agree that remuneration is to be paid after expenses have been incurred. The value added tax is added to the remuneration in each case, as far as this is not shown separately in the offer.
(2) Payments are due according to the agreed payment schedule. In the absence of a payment plan, the due date is determined by the due date stated by ZeMA gGmbH in the invoice. Payments must be made without deduction to the specified account of ZeMA gGmbH, stating the invoice number. In the event of default on the part of the client, interest shall be payable at the statutory interest rate.
(3) Offsetting against counterclaims of the client that are not based on the same contractual relationship is only permitted with undisputed or legally established counterclaims of the client.
(4) The customer can only exercise a right of retention if his counterclaim is based on the same contractual relationship.
(5) Unless otherwise agreed in the research and development contract, 50% the agreed total remuneration plus statutory value added tax is due for payment. The remaining 50% upon completion or submission of the final report. Payment shall be made in cash to the business account of ZeMA gGmbH specified in the research and development order. If the research and development contract itself does not meet the requirements for proper invoicing, ZeMA gGmbH will issue separate partial invoices.
(6) The statutory rate of value added tax valid at the time of the complete performance of the service shall apply to the remuneration for the service.

§ 6 Research and development results
(1) ZeMA gGmbH provides the client with research and development results that arise during the execution of the contract and fall within the scope of the contract (‘work results’).
(2) The results of the project are all scientific experience, knowledge, documents, prototypes, databases and know-how resulting from the execution of the agreed services, provided that they do not fall under §§ 7 and 8.
(3) On all work results resulting from the execution of the agreed services and commissioned by the client, the client receives a non-exclusive, unlimited, transferable and free right of use for the purpose underlying his order in all types of use after full payment of the agreed remuneration. The granting of an exclusive right of use for the purpose of application is in principle possible and requires a separate, written agreement. Such a request shall be communicated by the client within a period of 2 months from the notification of ZeMA gGmbH about the creation of the work result in text form. There is no obligation on ZeMA gGmbH to grant the client such a right.

§ 7 Rights of use; Community inventions; Intellectual property rights of third parties
(1) ZeMA gGmbH is entitled to the rights to patentable or utility modelable inventions, which are developed by employees of ZeMA gGmbH during the implementation of the project. ZeMA gGmbH will immediately inform the client of the inventions notified to it. ZeMA gGmbH alone is entitled to decide whether ZeMA gGmbH makes use of an invention and applies for intellectual property rights.
(2) The client is entitled to license the inventions created during the execution of the order, notified to ZeMA gGmbH and to the intellectual property rights applied for by ZeMA gGmbH and granted to it, a non-exclusive right of use at market conditions for the application purpose underlying his order. Unless otherwise agreed, the aforementioned right must be exercised in writing vis-à-vis ZeMA gGmbH within six months of receipt of the invention notification by the client. In addition to the reimbursement of the costs of filing, maintaining and defending intellectual property rights, market conditions include the statutory employee invention remuneration of ZeMA gGmbH, possibly a remuneration for the invention value and the agreement of an additional future remuneration, if the use of the invention by the client is unexpectedly successful from the point of view of the contractual partners at the time of conclusion of the license agreement. The granting of an exclusive right of use for the purpose of application requires a separate, written agreement and also only takes place against payment of a market-standard remuneration.
(3) In the case of joint inventions by employees of ZeMA gGmbH and the client, the parties will agree on the procedure in individual cases. Unless otherwise agreed, each party is entitled to use such inventions for its own purposes and to grant non-exclusive licenses to third parties without the consent of the other party. In the case of the client's own commercial use of the joint invention, ZeMA gGmbH is to pay a reasonable, ongoing compensation payment, adjusted to normal market license rates, proportionate to the inventor's shares. The conditions are to be agreed in a separate contract with ZeMA gGmbH. Non-commercial research with and for third parties is not commercial use. An application for a property right can only be made by agreement.
(4) If already existing industrial property rights of ZeMA gGmbH are used during the execution of the order, which are necessary for the exploitation of the research and development result by the client, the client can in principle obtain a separately agreed in writing, non-exclusive, fee-based right of use, insofar as no other obligations of ZeMA gGmbH preclude this. The client must request this from ZeMA gGmbH within six months of the end of the order.
(5) ZeMA gGmbH immediately informs the client of the intellectual property rights of third parties that become known during the execution of the order, which could conflict with the contractually agreed use. The contractual partners decide by mutual agreement in which way these industrial property rights are taken into account in the further execution of the order.

§ 8 Copyrights
(1) Unless otherwise agreed in the research contract, if research and development results are capable of being copyrighted, the client shall be granted a non-exclusive, irrevocable and transferable right of use for an indefinite period of time and space, limited in content to the purpose for which it was commissioned. A transmission of the source code is generally not owed.
(2) Otherwise, the provisions of § 7 shall apply mutatis mutandis.

§ 9 Use of work results for research and teaching
(1) ZeMA gGmbH is entitled to publish the research and development results resulting from the processing of the project in the usual scientific form and to use them free of charge for the acquisition of academic degrees.
(2) ZeMA gGmbH and any employee inventors retain a non-exclusive, free, sublicensable, irrevocable right of use for the purposes of research, teaching and health care, including the execution of research and development orders from third parties and research cooperations with third parties, to the rights referred to in the aforementioned §§ 6 to 8. This also applies if an exclusive right of use has been agreed.

§ 10 Confidentiality
During the period and for a period of five years after the termination of the order, the contractual partners shall keep mutually communicated information of a technical or commercial nature declared to be confidential as confidential from third parties as they keep their own information in need of confidentiality secret. This does not apply to information that was known or generally accessible to the other party or to the public prior to the communication or became known or generally accessible to the public after the communication without the cooperation or fault of the other party or corresponds to information that was disclosed or made accessible to the other party by a legitimate third party or was independently developed by an employee of the other party who did not have knowledge of the information communicated.

§ 11 Publication; advertising
(1) After prior consultation with ZeMA gGmbH, the client is entitled to publish the research and development result, mentioning the author and the participation of ZeMA gGmbH. The vote should be taken with regard to the fact that, for example, dissertations, diploma theses or applications for intellectual property rights are not affected. For advertising purposes, the client may only use the name of ZeMA gGmbH with their express consent.
(2) Publications of ZeMA gGmbH during the duration of the project, which concern the purpose of the project, will be agreed with the client no later than two weeks before the planned publication, insofar as the client has received exclusive rights. The client may only refuse the approval for publication by ZeMA gGmbH for good cause. It shall be deemed granted if the customer does not object within two weeks of notification by ZeMA gGmbH. In the event of refusal of consent by the Client, the parties will endeavour by mutual agreement to change the content of the planned publication, which will better take into account the interests of the Client. In no case shall the publication be delayed for more than three months.

Section 12 Special provision for research and development work under a purchase/work contract
(1) Insofar as ZeMA gGmbH owes the production or delivery of a state-of-the-art item as a research and development result on the basis of an express commitment, the relevant provisions of sales or works contract law shall only apply in the event of defects in accordance with the following paragraphs.
(2) If the research and development result achieved by ZeMA gGmbH proves to be defective, ZeMA gGmbH is initially given the opportunity to remedy the defect – depending on the nature of the research and development result, the defect and other circumstances also several times – by means of subsequent performance, at its discretion by repair or replacement delivery.
(3) If ZeMA gGmbH refuses supplementary performance in the case of research and development work under a purchase/work contract or if supplementary performance fails or if this is unreasonable for the customer, the customer may either withdraw from the contract or demand a reduction in the remuneration owed (reduction) or compensation for damages. The right of withdrawal can only be exercised in the event of a significant defect. It expires if the customer does not declare the withdrawal within two weeks after receipt of the notification from ZeMA gGmbH about the rejection or failure of the supplementary performance or two weeks after the time at which the customer becomes aware of the unreasonability of the supplementary performance. ZeMA gGmbH has to pay damages only under the further conditions of § 13.
(4) The client must examine the research and development result delivered by ZeMA gGmbH without delay and report defects without delay. Claims for recognisable defects only exist if they are notified to ZeMA gGmbH within a period of two weeks from delivery. Unrecognizable defects must be reported immediately after discovery.
(5) Claims due to defects are time-barred in accordance with § 14.

§ 13 Liability/warranty
(1) On the basis of the recognised rules, ZeMA gGmbH will carry out the research with the care it deems appropriate in accordance with the state of the art in science and technology known to it at the time of implementation and will endeavour to achieve the project objective and the intended results without assuming any further guarantee, liability or guarantee for the achievement of the project objective and the intended results or their industrial and economic usability.
(2) The customer must immediately notify us in writing of any defects that have occurred.
(3) Insofar as conflicting rights of third parties become known, ZeMA gGmbH informs the client immediately, but does not guarantee that the research and development results achieved during the execution of the research work are free of third-party rights.
(4) Unless otherwise contractually agreed, the warranty shall be based on the statutory provisions.
(5) The liability of ZeMA gGmbH, its legal representatives and vicarious agents for breaches of duty and tort is limited to intent and gross negligence. ZeMA gGmbH, its legal representatives and vicarious agents shall also be liable for negligence in the event of a breach of essential obligations that endanger the purpose of the contract (cardinal obligations). In any case, liability shall be limited to foreseeable damage typical of the contract.
(6) In the event of a legal defect due to the infringement of third-party rights, ZeMA gGmbH shall only be liable if these rights exist in the Federal Republic of Germany, if the client uses the research and development result in accordance with the contract and if the third party has legitimately claimed them and if the client has immediately informed ZeMA gGmbH in writing of the claims asserted by the third party.
(7) The exclusion or limitation of liability does not apply to liability for damages resulting from injury to life, limb or health, as well as for damages resulting from product liability.

§ 14 Limitation period
(1) The claims of the client due to breach of duty and tort become statute-barred within twelve months. This does not apply to the extent that the law stipulates longer periods in §§ 438 (1) no. 2 and 634a (1) no. 2 BGB, ZeMA gGmbH is liable for intent or gross negligence or for claims for damages arising from injury to life, body or health.
(2) If the acceptance of the research and development result is provided for, the limitation period for claims for defects begins with the acceptance, otherwise with the handover.
(3) Negotiations between the contracting parties on claims or on the circumstances justifying the claim inhibit the limitation period. The inhibitory effect ends if one contractual partner does not comply with the request of the other contractual partner to continue the negotiations within four weeks.

Section 15 Duration of the contract; denunciation
(1) The duration of the contract depends on the specifications in the research and development contract.
(2) Irrespective of this, each contractual partner is entitled to terminate the contract extraordinarily for good cause.
(3) Termination must be in writing.
(4) After effective termination, ZeMA gGmbH will hand over to the client the order result achieved by the end of the notice period within four weeks. The client is obliged to reimburse ZeMA gGmbH for the services provided up to the end of the notice period and to reimburse all expenses (including personnel costs) that ZeMA gGmbH inevitably incurs in order to fulfil its contractual obligations. In the event that the termination is based on a fault of one of the contractual partners, claims for damages remain unaffected.

§ 16 Final provisions
(1) Ancillary agreements, amendments and additions must be made in writing.
(2) The place of performance for services and payments is Saarbrücken.
(3) Place of jurisdiction is Saarbrücken.
(4) The law of the Federal Republic of Germany shall apply to the exclusion of the United Nations Convention on the International Sale of Goods (CISG) and national conflict of laws.
(5) Should individual or several provisions be or become invalid in whole or in part or not practicable for legal reasons, without thereby rendering the achievement of the aim and purpose of the entire agreement ineffective, this shall not affect the validity of the remaining provisions. The same applies in the event of a regulatory gap. ZeMA gGmbH and the client undertake to replace the invalid or unenforceable provision with a provision that fulfils the intended purpose of the invalid or unenforceable provision. In the event of additional loopholes, the Contracting Parties undertake to fill the loophole by means of a provision which is economically closest to what the Contracting Parties would have wanted in accordance with the intended purpose and economic objective of the Treaty if they had considered the point in need of regulation.