General Terms and Conditions for Research-
and Supply Contracts of Impact Innovations GmbH
Section 1 Scope
(1) These General Terms and Conditions (GTC) shall apply to all deliveries and services provided by Impact Innovations GmbH (Impact Innovations) to its customers unless contrary individual agreements have been concluded with the customer. These GTC shall also apply to any future transactions between the parties.
(2) Conflicting general terms and conditions of the customer are contradicted. Such terms will only be accepted if Impact Innovations has explicitly agreed thereto in writing.
(3) These GTCs only apply to entrepreneurs and any legal entities construed according to public law.
§ 2 Offers and Conclusion of Contract
(1) All offers by Impact Innovations are subject to change and non-binding unless they are explicitly marked as binding or contain a specific acceptance period.
(2) Orders or assignments of the customer must be made in writing or in text form. The order by the customer is considered a binding offer of contract. Unless otherwise stated in the order, Impact Innovations is entitled to accept the order within two calendar weeks after receipt. Acceptance can be declared in writing or in text form, for example by order confirmation.
(3) For the legal relationship between Impact Innovations and the Customer, the contract concluded in writing or in text form together with these Terms and Conditions shall be the sole binding document. Oral statements made by the parties prior to the conclusion of the contract are legally non-binding and will be replaced by the written or textual contract, unless they expressly state that they shall continue to be binding. Supplements and amendments to the contract shall be made in writing or in text form to be effective.
§ 3 Prices and payment
(1) Prices of Impact Innovations are valid for the scope of services and deliveries listed in the order confirmation. Additional or special services will be charged separately. The prices are in Euro ex works (EXW, Incoterms 2010) of Impact Innovations and do not include packaging, VAT, customs duties for export deliveries as well as fees and other public charges.
(2) Unless otherwise agreed upon, any invoice amount is due for payment within 30 days from the date of invoice without deduction. When ordering systems, 30 % of the invoice amount is due immediately after conclusion of the contract, 60 % upon delivery of the system and the remaining 10 % after operational readiness or commissioning. After the due date, interest on arrears will be charged at a rate of 8 % above the respective base interest rate p.a. Impact Innovation reserves the right to claim further damages caused by default.
(3) In case of a significant delay in payment, Impact Innovations is entitled, after written notification and setting a grace period for the customer, to suspend the services owed according to the contract until the open and due invoices were settled.
(4) The customer is only entitled to offset if his counterclaims are undisputed or became legally absolute. The customer is only entitled to assert any rights of retention based upon counterclaims from the same contractual relationship.
§ 4 Delivery and service dates, subcontractors
(1) Any deadlines and dates for deliveries and services promised by Impact Innovations are always understood as approximate unless a fixed deadline or date has been explicitly agreed upon.
(2) Impact Innovations may demand an extension of delivery and service deadlines from the customer for any period of time where customer does not fulfill its contractual obligations including its obligation to cooperate.
(3) Impact Innovations shall not be liable for any impossibility or delays of deliveries or services, as far as caused by force majeure or other events not foreseeable at the time of the conclusion of the contract (e.g. operational disruptions, difficulties to procure materials or energy, transport delays, strikes, lack of work force, energy or raw materials, wrong or late delivery by suppliers or official measures), for which Impact Innovations is not responsible. If such events create a permanent and substantial difficulty or impossibility for Impact Innovations to deliver the goods or services, Impact Innovations is entitled to withdraw from the contract.
(4) Impact Innovations may provide all deliveries and services by professionally qualified subcontractors.
§ 5 Change Request
(1) The customer may at any time request a change to the agreed services in writing or in text form (Change Request). Such a request shall specifically describe the intended content and scope of the Change Request.
(2) After receipt of a Change Request, Impact Innovations will inform the customer as soon as possible about the expected term for its review and costs for the customer. If the customer then commissions Impact Innovations to review the Change Request, Impact Innovations will do so within a reasonable term and will provide the customer with a proposal for the change, provided Impact Innovations does not reject the Change Request. Impact Innovations may decide for the latter in particular, if the Change Request is technically, economically or temporally unreasonable or if it is outside of Impact Innovations' service portfolio.
(3) A change proposal by Impact Innovations is binding for a period of 15 working days after submission. If the Customer accepts the change proposal by declaration to Impact Innovations in writing or in text form in due time, its contents become part of the contract.
§ 6 Place of Performance, Default of Acceptance, Shipment, Transfer of Risk and Acceptance
(1) Place of performance for all obligations arising from the contract is the registered office of Impact Innovations, currently Rattenkirchen, Germany, unless otherwise agreed. If Impact Innovations also owes the installation of a machine or other product, the place of performance is the place where the installation must be carried out.
(2) In case of default of acceptance or other culpable violation of the customer's obligations to cooperate, Impact Innovations is entitled to compensation for the resulting damage, including any additional expenses. Further claims are reserved. In this case, the risk of accidental loss or accidental deterioration of the goods will be transferred to the customer at the time of default of acceptance or other violation of cooperation obligations.
(3) If the goods are dispatched at customer's request, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer upon the time of dispatch.
(4) If an acceptance has to take place, the goods shall be deemed accepted if
- the delivery and, if Impact Innovations also owes the installation, the installation is completed,
- Impact Innovations has informed the customer accordingly with reference to the presumption of acceptance according to this § 6 (4) and has requested the customer to accept,
- 40 working days have passed since delivery or installation or the customer has started to use the machine or other goods, and
- the customer has omitted acceptance within this period for a reason other than a defect reported to Impact Innovations, which makes the use of the machine or other goods impossible or significantly impairs it.
§ 7 Retention of Title
(1) Until all payments are fully settled, the goods of Impact Innovations remain property of Impact Innovations. In case of a material breach of contract by the customer, including default of payment, Impact Innovations is entitled to retract the goods.
(2) The Customer shall treat the goods under retention of title with care, insure them appropriately and, if necessary, maintain them.
(3) As long as the purchase price has not been fully settled, Customer shall immediately inform Impact Innovations in writing if goods are encumbered with rights of third parties or if they are exposed to other third-party interventions.
§ 8 IP Rights and Rights to Work Results
(1) According to the terms of this provision, Impact Innovations warrants that the delivery item is free of industrial property rights or copyrights of third parties significantly limiting the contractual use of the delivery item. Each party shall immediately notify the other party in writing if claims are asserted against it due to the infringement of such rights.
(2) The Customer warrants that its requirements and/or specifications (e.g. in construction plans, documents, files or performance specifications) with regard to the delivery item do not infringe industrial property rights or copyrights of third parties which significantly restrict the contractual use of the delivery item. In case of an infringement in terms of this paragraph, the customer shall indemnify Impact Innovations from all related claims of third parties and shall reimburse Impact Innovations for all damages and expenses incurred for the removal of the infringement.
(3) If the delivery item infringes an IP right or copyright of a third party, and this infringement is not attributable to requirements and/or specifications of the Customer in terms of sub-paragraph (2) above, Impact Innovations shall, at its own discretion and at its own expense, either modify or exchange the delivery item in a way – without limiting contractually agreed upon functions – that no rights of third parties are infringed anymore, or obtain rights of use for the Customer by concluding a license agreement with the third party.
(4) Impact Innovations is entitled to industrial property rights and copyrights as well as corresponding know-how and business secrets (Foreground) created by Impact Innovations in the course of research and test work within the scope of a contract with the Customer, Such Foreground will be transferred to the Customer by Impact Innovations in accordance with the following sub-paragraphs (5) and (6).
(5) As far as the Foreground consists of copyrighted works, know-how and business secrets, Impact Innovations herewith transfers to the Customer a non-exclusive, free of charge, non-transferrable to third parties, temporally and spatially unlimited right of use for the application purpose according to the Customer's order. This right of use includes, in particular, the duplication and distribution of the Foreground for all known types of use, including the right to edit and further develop the Foreground and to use the results of this process to the aforementioned extent for the agreed purpose.
(6) As far as the Foreground is based on inventions made during the execution of the order and on patent rights that have been applied for and granted, the Customer receives a non-exclusive, free of charge right of use for the agreed purpose of application with the equipment or machines purchased from Impact Innovations.
(7) If, during the execution of the order, already existing IP rights and/or copyrighted works of Impact Innovations (Background) are used, which are necessary for the exploitation of the research and test results by the Customer, Customer receives a non-exclusive right to use them for the agreed purpose with the equipment or machines purchased from Impact Innovations.
§ 9 Warranty for deliveries and services, material defects
(1) If services, in particular research and test works, of Impact Innovations and/or related research and test results provided by Impact Innovations are defective, Impact Innovations will either correct them or replace defective services or results or parts thereof with new ones within a reasonable term. After the unsuccessful expiration of the second deadline for rectification, the customer may demand a partial cancellation of the contract or a reduction of the payment.
(2) For other delivery items (e.g. machines, systems, associated parts) the warranty period is one year from delivery or, if acceptance is required, from acceptance. This period does not apply to claims for damages of Customer resulting from injury to life, body or health or from intentional or grossly negligent breaches of duties by Impact Innovations or its vicarious agents, which are time-barred according to the statutory laws.
(3) Customer must carefully examine other delivery items immediately after delivery to the Customer or to a third party designated by the Customer. With respect to obvious defects or other defects recognizable through an immediate, careful inspection, other delivery items are deemed to be approved by Customer if Impact Innovations does not receive a written notice of defects within fifteen working days after delivery. With respect to other defects, other delivery items are deemed to be approved by Customer, if Impact Innovations does not receive a written notice of defects within ten working days after the date the defect became apparent.
(4) In case of material defects of other delivery items, Impact Innovations is obliged and entitled to choose between repair or replacement within a reasonable period of time. In case of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement, Customer may withdraw from the contract or reduce the purchase price appropriately.
(5) If the defect is due to a fault of Impact Innovations, the customer may claim damages under the conditions set forth in § 10.
(6) The warranty does not apply, if the Customer modifies the other delivery item or got it modified by a third party without the consent of Impact Innovations which made the removal of the defect impossible or unreasonably difficult. In any case, the Customer has to bear any additional costs for the removal of the defect resulting from the modification.
§ 10 Liability
(1) In case of intent or gross negligence on behalf of Impact Innovations or its representatives or vicarious agents, Impact Innovations is liable according to statutory laws. The same applies in case of culpable violation of essential contractual obligations. As far as there is no intentional breach of contract, the liability of Impact Innovations is limited to foreseeable, typically occurring damages.
(2) Any liability for culpable injury to life, body or health, for guarantees given as well as the liability according to the Product Liability Act shall remain unaffected.
(3) Unless otherwise expressly regulated above, any liability of Impact Innovations is excluded.
§ 11 Confidentiality
The parties undertake to treat all information received from the other party, in particular technical and economic information, strictly confidential and to use it exclusively for the purposes of the contract, unless otherwise agreed. This obligation does not apply to such information demonstrably already known to the other party before it was communicated within the scope of the contract, which was demonstrably independently compiled by it or otherwise legally obtained, or which is generally known or becomes generally known without violation of the contract of the parties. The parties vouch that the provisions of this clause are also observed by their employees, vicarious agents or affiliated companies. This obligation applies for the duration of the contract and beyond until the information becomes public knowledge. The reverse engineering of business secrets provided by Impact Innovations by the Contractual Partner requires prior written approval of Impact Innovations.
§ 12 Final provisions
(1) If the Customer is a merchant, a legal entity under public law or a special fund under public law or if the Customer has no general place of jurisdiction in the Federal Republic of Germany, the exclusive place of jurisdiction for all possible disputes arising from the business relationship between Impact Innovations and the Customer is Munich (Regional Court Munich I).
(2) The relationship between Impact Innovations and the Customer is exclusively subject to the laws of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
(3) The Customer is responsible for ensuring that his use of the other delivery items is compatible with all applicable legal requirements. It is advised that the export of other delivery items may be subject to official approval or even excluded for various reasons (e.g. intended use) according to relevant export regulations of Germany, the EU and/or the USA or from other international sources. Such regulations may also apply to re-exports from the country of delivery to a third country. The Customer shall strictly observe all applicable regulations in this context, obtain any necessary permits and ensure that they are also observed in the case of further deliveries. In case of culpable violation of these obligations by Customer, Customer shall indemnify and hold Impact Innovations harmless from all claims of third parties and compensate Impact Innovations for all damages resulting from such violation.
(4) If any provision of the contract or these GTC are or become invalid or unenforceable, the remaining provisions of the contract or these GTC shall remain unaffected. In place of the invalid or unenforceable provisions, the parties hereby undertake to agree on a valid provision which comes as close as possible in legal and economic terms to the meaning and purpose of the invalid or unenforceable provisions. The same applies to the filling of gaps in the contract or these GTC.
Impact Innovations GmbH
Phone: +49 8636 6951900
Fax: +49 8636 695190-10
Managing Directors: Peter Richter, Leonhard Holzgaßner, Andreas Gropp
Local court Traunstein HRB 20057