Legal notice

1. Order

1.1 The order shall be concluded by a letter of order from the Customer and an order confirmation from the Contractor.

1.2 The technically required development services as well as the content of the associated documentation are laid down in the service description (specification, requirement specification, in the case of smaller projects in the text of the contractor’s offer itself).

The content of the service description is the responsibility of the client. If the service description is prepared by the Contractor at the request of the Client, the Contractor may demand separate remuneration for this. Unless otherwise agreed, the actual expenditure shall be reimbursed. If the Contractor recognizes that the service description is faulty, ambiguous or not executable, it shall inform the Client thereof without delay. The latter shall then decide without delay on the further course of action.

For product sales of the contractor (e.g. the SPYDER system), the functional scope to be delivered is laid down in the offer text. Depending on the offer, this may also deviate from the maximum scope to be achieved.

2. Compensation

2.1 The price agreed in the order shall apply plus the value added tax applicable at the time of invoicing, delivery or performance of services.

2.2 Any changes or additional services requested by the Customer which lead to a change in the price or the agreed delivery/service dates shall require mutual agreement and, if necessary, a corresponding amendment to the order.

3. Terms of payment

3.1 Unless otherwise stipulated in the order, payment shall be made after delivery.

3.2 Invoices shall be payable without any deduction within 10 working days of the invoice date.

3.3 The results of performance or delivery items shall remain the property of the Contractor until all claims to which it is entitled against the Customer have been satisfied.

3.4 Withholding of payments or offsetting against the invoice amount shall only be permissible if the Contractor has acknowledged the counterclaim in writing or if the counterclaim has become res judicata.

4. Delivery / performance dates

The delivery/performance dates stated in the Contractor’s order confirmation shall apply.

5. Cooperation of the client

5.1 The Customer shall be obligated to support the Contractor to the extent necessary and to create in its sphere of operation, free of charge, all prerequisites necessary for the proper execution of the order.

5.2 Required operating resources, documentation as well as test and qualification resources which are only available at the Customer shall be made available to the Contractor free of charge in its development laboratories.

6. Transfer of risk

6.1 The risk shall pass to the Customer as soon as the delivery has left the premises of the Contractor.

6.2 If delivery is delayed at the request of the Customer, the risk shall pass to the Customer from the date of readiness for dispatch.

7. Acceptance

7.1 The Contractor shall report readiness for acceptance in due time before the agreed date for the start of the functional tests.

7.2 In the functional test, the delivered embedded system is checked against the requirements of the performance specification or an acceptance specification. The Customer shall be obliged to declare acceptance if the functional test has shown that the contractual requirements have been met. The Customer may not refuse acceptance due to insignificant errors. Errors are immaterial if they do not restrict the contractually agreed functionality.

7.3 The functional test shall be recorded by the Contractor, the record shall be signed by both parties. If a successful function test (i.e. proof of the contractually required requirements without material errors) is established in the protocol, the protocol shall be deemed to be a declaration of acceptance. Insignificant errors shall be recorded in the protocol and shall be rectified by the Contractor without delay and free of charge.

7.4 If a significant error occurs during the functional test, the Contractor shall immediately remedy this error and immediately make the embedded system available again for acceptance.

7.5 If the Customer does not start the functional test within three weeks after the agreed date, acceptance shall be assumed upon expiry of this period.

8. Claims for defects

8.1 The Contractor warrants against defects that nullify or reduce the value or the suitability of the delivered embedded system for the contractually intended use and that are clearly reproducible.

8.2 The Customer is obliged to report an error to the Contractor immediately after its occurrence in written and specified form. The removal of defects shall be subject to the respective last system version taken over by the Customer.

8.3 If there is a defect pursuant to Section 8.1 and a complaint pursuant to Section 8.2, the claims for defects shall initially be directed to the elimination of the defect by way of rectification or, at the Contractor’s option, to a new delivery free of defects. If two attempts to remedy the defect are unsuccessful, the Customer may, at its option, demand a reduction of the price or rescission of the contract.

8.4 The Contractor does not warrant that the Embedded System meets the requirements of the Customer which have not become part of the contract. This shall apply in particular to the operating environment as well as to the cooperation with other systems of the Customer.

Furthermore, the elimination of defects shall not apply if the Customer interferes with the delivered system without the prior written consent of the Contractor, in particular if the Customer independently makes changes to it. This shall not apply if the Customer proves that the intervention was not the cause of the defect complained of.

8.5 If, in the course of remedying a defect within the limitation period, the Contractor recognizes that the Customer is responsible for the defect discovered, it shall notify the Customer thereof without undue delay. The Contractor shall invoice the Customer for the development and testing time already incurred or still to be incurred.

9. Liability

9.1 The Contractor shall be liable to the Customer, irrespective of the legal grounds, for any damage caused by it or its vicarious agents intentionally or by gross negligence.

9.2 In the event of slight negligence, the Contractor shall only be liable for the breach of essential contractual obligations (cardinal obligations). In this case, the amount of liability per case of damage shall be limited to the amount of the foreseeable damage typical for the contract, but not more than the amount of the order value.

9.3 The Contractor shall not be liable for indirect or consequential damages, in particular for loss of profit and consequential damages.

9.4 The Contractor shall only be liable for data losses caused by slight negligence if the Contractor has ensured that the data can be restored with reasonable effort by creating backup copies or in another suitable manner. The liability shall be limited to the expenditure for the recovery.

9.4 Delivered prototypes of the Contractor may not, as a matter of principle, be installed in aircraft or automobiles in which, in particular, people could be directly or indirectly harmed during operation.

10. Conflicting property rights

The Contractor warrants that the delivered embedded system is free from third party property rights or that a corresponding license for use of the third party is available. Otherwise, the Contractor shall indemnify the Client against claims of the third party. If a third party asserts a justified claim, the Contractor shall, at its discretion, obtain a corresponding license for use at its own expense within a reasonable period of time or modify the embedded system free of charge for the Customer or replace it with a solution free of property rights.

If the Customer (e.g.: so-called run-time licenses) also requires its own license for third-party property rights that cannot be provided or passed on by the Contractor, the Contractor shall notify the Customer of this without delay. In this case, the Client must acquire these rights from the third party at its own expense.

11. Rights of use

11.1 The Contractor shall grant the Customer the non-exclusive and non-transferable right of use to the respective delivery item.

11.2 If the Customer intends to pass on the embedded system – even if it is a version revised, extended or changed by it – to a company/organic entity belonging to its corporate association/group, it shall reach a separate agreement with the Contractor on this.

11.3 The Customer undertakes vis-à-vis the Contractor not to provide the embedded system to third parties. Disclosure neither in part nor temporarily or in any other way shall be inadmissible. It is agreed between the parties that the embedded system enjoys copyright protection.

11.4 It is pointed out that the Contractor shall in principle not deliver any sources regarding the embedded system (e.g.: circuit diagrams, layouts, detailed technical drawings, VHDL or C code).

11.5 If the Customer intends to further develop the existing embedded system, it shall consult the Contractor who performed the initial development.

12. Limitation

All claims of the Customer arising from the contractual relationship concerned shall become statute-barred 12 months after delivery/acceptance.

13. Secrecy
13.1 The Contractor and the Client shall treat as confidential any business and trade secrets of which they become aware in connection with the performance of the contract. This shall also apply to information which has been expressly designated as confidential. This obligation shall also apply for the duration of the order and for 5 further years after the end of the order.

13.2 If the Customer delivers certain parts of the system solution to the Contractor to which it claims its own Intellectual Property (IP) rights, it shall notify the Contractor of this in writing in advance and clearly designate this IP. The Customer shall ensure that this type of information does not come into the Contractor’s possession before the Contractor has acknowledged and confirmed these IP rights in writing.

14. Other provisions

14.1 Any amendments, supplements or collateral agreements to these General Terms and Conditions as well as to the rest of the order must be made in writing.

14.2 If any provision of these General Terms and Conditions or the rest of the contract is or becomes invalid, all other provisions shall continue to apply. The parties shall replace the invalid provision with a valid provision that comes as close as possible to the invalid provision in economic terms.

14.3 German law shall apply. The place of jurisdiction is Kandel / Rhineland-Palatinate. UN sales law is excluded.

Status: 31.09.2018

Responsible entity: X2E GmbH