Terms and Conditions
General Terms and Conditions of VDEh-Betriebsforschungsinstitut GmbH for the Performance of Research and Development Orders, Version 2008/1
Betriebsforschungsinstitut is an industrial research institute that pursues purely and directly non-profit aims. It undertakes contract research in the area of applied research and opens up new ground technologically. The following Terms and Conditions are tailored to these particular features.
1 Area of Application
1.1 The following Terms and Conditions apply to all research and development orders placed with the Betriebsforschungsinstitut (hereinafter referred to as “Research Institute”). Any terms of the Customer, which deviate from, conflict with or supplement these Terms shall not become part of the Contract, unless the Research Institute expressly agrees to their application in writing. Unless otherwise provided for in the following Terms and Conditions, the provisions of law relating to contracts of service (§ 611 et seq. Civil Code (BGB)) apply to all research and development orders.
1.2 If the following Terms and Conditions exclude or limit the liability for damages of the Research Institute, its authorised representatives or its agents, such exclusion or limitation does not apply to liability for damages resulting from harm to life, physical injury or harm to health.
2 Subject matter of the Contract, Processing Time
2.1 Subject matter of the research and development order are the types of work offered by the Research Institute.
2.2 If the offer or research and development order specifies a period for processing or completion dates, these are deemed to be binding only if the Research Institute has expressly confirmed their binding effect. If the Research Institute becomes aware that the binding processing period or binding deadline cannot be met, it shall notify the Customer of the grounds for the delay and agree with the Customer on a reasonable adjustment.
3.1 Remuneration is always charged in the form of a set price. Alternatively, the contractual partners may agree that remuneration is billed in terms of labour and materials – if appropriate, with a maximum cost limit. Value-added tax is added to all remuneration.
3.2 The Research Institute shall notify the Customer immediately if it becomes foreseeable that the research and development result aimed for cannot be achieved with the level of remuneration agreed. The Research Institute shall propose to the Customer a reasonable adjustment of the remuneration. If this becomes necessary on grounds, which were not foreseeable at the time of placing the order and for which the Research Institute bears no responsibility, and no other agreement is achieved with the Customer, then the proposed adjustment becomes binding.
4.1 Payments are due in accordance with the agreed payment plan. In the absence of a payment plan, payment is due on the date specified in the invoice. Payments must be made into the specified account of the Research Institute without deduction and quoting the invoice number.
4.2 Offsetting against receivables of the Research Institute is permitted only if the counterclaim is undisputed or has res judicata effect and the legal requirements for offsetting are satisfied.
4.3 The Customer can only exercise a right of retention if the counter-claim is based on the same contractual relationship.
5 Research and development result. Rights of Use
5.1 The research and development result is provided to the customer in accordance with the quotation on completion of the order.
5.2 The Customer receives non-exclusive and free rights of use, for the purpose of the application on which the Customer’s order is based, of the inventions and proprietary rights registered by and granted to the Research Institute in respect of the same that arise during performance of the order. The Customer refunds to the Research Institute a share to be agreed of the costs for registration, maintenance and defence of the proprietary rights and pays flat-rate amount of employee invention remuneration for the use thereof, the amount of which remuneration shall be agreed in the individual case.
5.3 Instead of the rights to the inventions and to the proprietary rights defined in Article 5.2, which are registered by and granted to the Research Institute, the Customer can receive an exclusive right of use on demand and in return for remuneration for the purpose underlying his order. This request must be submitted in writing to the Research Institute no later than three months after notification of the invention. The Research Institute reserves a non-exclusive right of use which is free of charge for research and development purposes.
5.4 For the purpose on which his order is based, the Customer receives a non-exclusive and free right of use to the copyright-protected works, databases created and expertise generated. The granting of an exclusive right of use for the purpose of the application requires a special agreement.
5.5 Inventions achieved jointly by the contractual partners during performance of the order (joint inventions) may be used and licensed by either contractual party without necessitating any financial compensation. The contractual partners each pay a share to be agreed of the costs for registration, maintenance and defence of the relevant proprietary rights. In the case of copyright-protected works jointly created by the contractual partners during performance of the order (joint copyrights), Article 5.5, Sentence 1 applies mutatis mutandis.
5.6 If existing proprietary rights of the Research Institute are used to perform the order, and the Customer requires the same in order to use the research and development result, the Customer is granted a non-exclusive right of use in return for remuneration to be specially agreed, provided that this does not conflict with any other obligations of the Research Institute.
6 Proprietary Rights of Third Parties
6.1 The Research Institute shall notify the Customer without delay if it becomes aware of any proprietary rights of third parties during performance of the order that could conflict with the use agreed in Article 5. The contractual partners shall mutually decide on the way in which these proprietary rights shall be taken into account during further performance of the order.
6.2 In the event of proprietary rights of third parties being infringed, the Research Institute is liable if it has breached its duty of notification as defined in Articles 7.2 and 8.6. Otherwise the liability of the Research Institute is excluded in the event of conflicts with the proprietary rights of third parties. In the event of research and development work performed under contracts of sale or contracts for work and services, the liability of the Research Institute is determined exclusively by Article 8.
7.1 The Research Institute is liable for the application of scientific care and adherence to the generally accepted codes of technical practice, but not for the achievement of the actual research and development aim.
7.2 The liability of the Research Institute, its authorised representatives and its agents for breaches of duty and tort is limited to intent and gross negligence. In the event of infringement of duties essential to the Contract (cardinal duties), the Research Institute, its authorised representatives and its agents are liable also in the event of slight negligence. In each case, liability is limited to the foreseeable and typical contractual damages, in which case all liability for loss of production and lost profits is excluded.
7.3 If the Research Institute does not perform the service incumbent upon it or does not perform it on time or in the manner owed, the Customer can claim damages or damages in lieu of performance if the requirements of §280 et seq. Civil Code (BGB) are satisfied.
7.4 The liability of the Research Institute based on any legal ground whatsoever is limited in aggregate to the total order value, unless our insurance covers a higher amount.
8 Special agreement for research and development work performed under a contract of sale or contract for work and services
8.1 If the Research Institute, under an express pledge, owes the manufacture and delivery of a thing in accordance with the state of the art as the research and development result, then, in the event of defects, the relevant provisions of the contract of sale or contract for work and services apply only subject to the terms of the following paragraphs.
8.2 If the research and development result achieved by the Research Institute proves to be defective, the Research Institute is initially given the opportunity – depending on the type of research and development result, on the defect and the other circumstances (also more than once) – to eliminate the defect by way of subsequent performance, at its discretion either by improvement or replacement delivery. In the event of a legal defect based on the infringement of proprietary rights of third parties, subsequent performance takes place in such a way that the Research Institute obtains authority for the contractual use on behalf of the Customer or modifies the research and development result in such a way that the relevant proprietary rights of the third party are not infringed.
8.3 If the Research Institute refuses subsequent performance or subsequent performance is unsuccessful or the Customer cannot reasonably be expected to accept it, the Customer may, at his own discretion, require a reduction in the remuneration owed (price reduction) or, in the event of a considerable defect, withdraw from the Contract. The right of withdrawal extinguishes if the Customer does not declare withdrawal at the latest fourteen days after receipt of the notification of refusal or failure of subsequent performance, or at the latest 14 days after the time at which the Customer becomes aware that acceptance is unreasonable.
8.4 The Customer must examine the research and development result delivered by the Research Institute without delay and notify any defects without delay. The Research Institute gives a warranty for recognisable defects only if they are notified to the Research Institute within a period of 14 days.
8.5 The liability rules of Articles 7.2, 7.3 and 7.4 apply to the Customer’s claims to damages as a consequence of defects.
8.6 In the event of a legal defect based on the infringement of proprietary rights of third parties, the Research Institute is liable only if these rights exist in the Federal Republic of Germany, the Customer uses the research and development result for contractual purposes and is justifiably held liable by the third party and the Customer informs the Research Institute about the claims brought by the third party without delay in writing.
8.7 Claims based on defects become time-barred as per Article 9.
9 Statute of Limitations
9.1 The claims of the Customer for breach of duty and tort become time-barred within 12 months. This does not apply if the law stated in § 438(1) No. 2, § 479(1) (Right of recourse) and § 634a (1) No.2 1. Alternatives (Construction defects) Civil Code (BGB) prescribes longer periods or the Research Institute is liable due to intent or gross negligence.
9.2 If formal acceptance of the research and development result has been provided for, the limitation period for claims based on defects as per Article 9.1 starts to run on the date of acceptance, otherwise on the date of handover.
9.3 Negotiations between the contractual partners about claims or about the circumstances establishing the claim suspend the statute of limitations. The suspensive effect ends if a contractual partner does not comply with the wishes of the other contractual partner to continue negotiations within a period of 4 weeks.
10 Reservation of Title
10.1 The Customer acquires title to the research and development result as well as to the rights of use specified in Articles 5.2, 5.3, 5.4 and 5.6 only on payment in full of the agreed remuneration. Title of the Research Institute and rights of use may not be pledged nor assigned as securities.
10.2 In the event that the title of the Research Institute to the research and development result is extinguished by connection, mixing or processing, it is already now agreed that title to the unified item thereby produced passes in the proportion of the value (invoice value) due to the Research Institute until payment in full of the agreed remuneration.
10.3 In the event of resale of the research and development result, the Customer assigns all rights arising from resale to the Research Institute with in rem effect until payment in full of the agreed remuneration.
11.1 The contractual partners shall not allow third parties access to any mutually notified information of a technical or business nature and declared to be secret for the duration of the contractual relations and for a period of five years after termination of the order. This does not apply to information which was already known to the other contractual partner or to the public prior to notification or which was generally accessible or which was known to the public after notification without the involvement or fault of the other contractual partner or which becomes generally accessible or which corresponds to information disclosed to or made accessible to the other contractual party by a third party entitled to do so or which was independently developed by an employee of the other contractual partner who had no knowledge of the information notified.
11.2 For the purpose of this provision, third parties are not subcontractors of the Research Institute who are entrusted with the performance of part services as part of the order and who have been obliged to secrecy.
12 Publication / Advertising
12.1 The Customer is entitled, by prior agreement with Research Institute, to publish the research and development result, naming the author and the Research Institute. Agreement should be made in such a way as to ensure that no harm is done with regard to e.g. dissertations, diploma theses or registrations of proprietary rights. The Customer may use the name of the Research Institute for advertising purposes only with the express consent of the latter.
12.2 In the event that the Customer has acquired the exclusive rights in accordance with Article 5.3, publications by the Research Institute regarding the purpose shall be agreed in good time with the Customer.
13.1 If no significant progress has been made within six months of commencement of the work, both contractual partners have the right to terminate the Contract with due notice of a period of one month to the end of the calendar month. Otherwise there is no ordinary right of termination.
13.2 Each contractual partner is entitled to terminate the Contract without notice for good cause.
13.3 After notice becomes effective, the Research Institute shall hand over the research and development result achieved until that time to the Customer within four weeks. The Customer is obliged to pay the Research Institute the costs incurred up until that time. Personnel expenses shall be charged according to hours worked. In the event that termination is due to fault of one of the contractual parties, this shall not affect the right to claim damages.
14.1 Collateral agreements, amendments and supplements must be made in writing.
14.2 Place of performance for services to be performed by the Research Institute is Düsseldorf.
14.3 The law of the Federal Republic of Germany applies to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
14.4 Should one or more provisions of this Contract be or become wholly or partly invalid, this shall not affect the validity of the remaining provisions. The same applies in the event of an omission.