General Terms and Conditions of Sale and Delivery of Framework Robotics GmbH, Germany (current as of 08/2021) for business transactions with entrepreneurs, legal entities under public law and special funds under public law.
1. GENERAL PROVISIONS
- The deliveries, services and offers of Framework Robotics shall be made exclusively on the basis of these General Terms and Conditions (hereinafter referred to as “Terms and Conditions”). Any opposing or deviating terms and conditions of the customer shall only apply if we have expressly agreed to their applicability. These Terms and Conditions shall also apply if we, being aware of terms and conditions of the customer that oppose with or deviate from these Terms and Conditions, carry out the transaction with the customer without reservation.
- Individual agreements made between us and the customer on an individual case basis (including side agreements, additions and amendments) shall take priority over the present Terms and Conditions. For the proof of the content of such agreements, a written contract with the customer and/or our written confirmation shall be authoritative.
- Cost estimates are non-binding unless otherwise expressly agreed.
- These Terms and Conditions shall also apply to all future business transactions with the customer until such time as new general terms and conditions of Framework Robotics come into force and effect.
2. Prices, Payment
- All prices are subject to statutory value-added tax.
- Unless otherwise agreed upon in writing, the prices shall deemed to be EXW (Incoterms 2020), shipping point of Framework Robotics plus packaging, transport, insurance, in case of export deliveries plus customs duties as well as fees and other public charges.
- We shall be entitled to adjust our prices appropriately if cost increases incurred after the contract has been entered into, in particular in case of changes in wage costs or in prices of materials, provided, however, a period of more than four (4) months elapses between the date of the contract signing and our delivery or performance.
- Unless otherwise agreed upon in writing, invoices shall be due upon issuance of the invoice; payment shall be effected in Euros within thirty (30) calendar days of the date of invoice without any deductions.
- In the case of late payment, we shall be entitled to charge default interest at the applicable statutory default interest rate. We reserve the right to claim further default damages.
- The customer shall be entitled to withhold payments or offset against counterclaims only to the extent that its counterclaims are undisputed or recognized by a final and binding judgement.
- If after conclusion of the contract we become aware of circumstances that may result in our claims to be in jeopardy due to customer’s inadequate ability to pay, we shall be entitled to perform outstanding deliveries and services only against pre-payment or provision of security and, following the expiry of a deadline set to this effect, to withdraw from the contract.
3. Delivery, Delivery Dates, Default
- Deliveries are made ex works/EXW (Incoterms 2020), shipping point Framework Robotics, unless otherwise agreed upon in writing.
- The commencement of and compliance with agreed delivery or performance dates shall be subject to the timely and proper fulfilment of the customer’s obligations to cooperate, in particular the timely receipt of all materials, documents, approvals, inspections and releases to be provided by the customer. In the event that the customer’s obligations to cooperate are not fulfilled on time and/or in an orderly manner, the delivery deadlines shall be extended appropriately.
- Partial shipments or partial services and corresponding invoices by Framework Robotics after completion of the partial service are admissible, unless this is an unreasonable hardship for the customer.
- We shall not be liable for the impossibility of supply, other performance or delays (including those of our subcontractors) insofar as these were caused by force majeure or by other events unforeseeable at the time of the conclusion of the contract and for which we are not responsible (e.g. disruptions of operations, difficulties in procuring materials, transport delays, strikes, legitimate lock-outs, lack of man power/raw materials, war, acts of terrorism, difficulties in obtaining necessary official permits, official measures, epidemics, incorrect or untimely supply or other performance by our suppliers/subcontractors). If the non-compliance with the delivery/service deadlines is due to such events, the delivery/service deadlines agreed upon shall be extended for the duration of such hindrance.
- If we are in default with our delivery or service, the customer shall, at our request, declare within a reasonable period of time whether it continues to insist upon the performance of delivery/service.
- In the event of delay in delivery or performance, the customer shall be entitled to withdraw from the contract within the framework of statutory provisions only insofar as we are responsible for the delay.
- Clause 7 shall apply to the customer’s claims for damages on account of delayed delivery/service.
- In the event that the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to claim any loss or damage resulting thereof. Without proof of any accrued loss or damage, we shall be entitled, however, to claim a lump sum fee for additional expenses in the amount of 0.5% of the price of the deliveries/services concerned, but not exceeding the amount of 5% of the price of the deliveries/services concerned. However, we shall have the right to prove higher loss or damages actually accrued, and the customer shall have the right to prove lower loss or damages actually accrued. Any further-reaching or other claims shall remain unaffected.
4. Obligation to Inspect, Notification of Defects
- The customer shall inspect the deliveries/services performed by us immediately and shall notify us in writing of any obvious defects immediately, at the latest within fourteen (14) calendar days. The customer shall notify us in writing of other defects immediately after discovery thereof. The date of receipt of the notification of a defect by us shall determine whether or not notification is in good time.
- Claims on account of defects shall be excluded if the notification of the defect is not received in due time.
- In the event of an unjustified notice of defect, we shall be entitled to demand compensation from the customer for any expenses we have incurred.
- The customer may not refuse to accept delivery and services on account of minor defects.
5. Defects/Defects of Title, Warranty
- The limitation period for claims on account of quality defects (Sachmängel) shall be twelve (12) months from the delivery of the product or object of service (hereinafter collectively referred to as “Product”), in the case of contracts to produce a work after acceptance of the work (transfer of risk). The foregoing provision shall not apply insofar as longer limitation periods are prescribed by statutory law.
- In the event that a quality defect, the cause of which already existed at the time of the transfer of risk, arises within the limitation period and provided this defect has been notified in due time, we shall be obliged to make subsequent performance (Nacherfüllung), at our own discretion, by remedying the defect or supplying a Product free of defects.
- Subsequent performance shall not cause the limitation period to start to run again.
- If subsequent performance fails, the customer may withdraw from the contract (Rücktritt) or reduce the amount of payment (Minderung) in accordance with the statutory provisions. Any further-reaching or other claims for damages of the customer shall remain unaffected.
- The customer’s claims for expenses required for the purpose of subsequent performance, in particular costs of transport, wages or materials, shall be governed by the statutory provisions. Such claims shall be excluded insofar as such expenses increased because the Product was subsequently taken to a place other than the customer’s place of business, unless such removal is in accordance with the intended use of the Product.
- In the event of only minor deviation from the characteristics agreed upon or only minor impairment in usability, the customer shall not be entitled to claims for subsequent performance.
- The following shall not deemed to be a defect and therefore we shall not be liable for: ordinary wear and tear; characteristics of the Product or damage caused after the date of transfer of risk as a result of improper handling, storage or setting up, non-compliance with installation, handling or maintenance instructions, use with unsuitable equipment/software/services, modification, improper repair or excessive strain or use of the Product; characteristics of the Product or damage caused by third party equipment with which the Product is used, or caused by force majeure, special external circumstances which are not foreseen under the terms of the contract, or due to the use of the Product beyond normal use or the use provided for under the terms of the contract; and non-reproducible software errors.
- We shall not be liable for the characteristics of the Products based on the design or the choice of material, provided that the customer stipulated the design or the material.
- Any customer’s claims to recourse against us shall only exist insofar as the customer has not entered into any agreement with its customer that goes beyond the statutory claims on account of defects, e.g. settlement on an ex-gratia basis.
- Any claims on account of defects, including recourse claims by the customer, shall be excluded insofar as the customer has had the defect remedied by a third party not authorized by us.
- In all other respects the customer’s claims for damages and reimbursement of futile expenses within the meaning of Section 284 BGB (German Civil Code) on account of defects shall be governed by the provisions of clause 7.
- Unless otherwise stated below, any other or further-reaching claims by the customer on account of defects shall be excluded.
- The provisions of this clause 5 shall apply mutatis mutandis to defects of title that are not constituted by the infringement of third-party industrial property rights.
6. Industrial Property Rights and Copyrights
- The customer shall promptly inform us, if claims are asserted against the customer for infringement of industrial property rights or copyrights of third parties (hereinafter collectively referred to as “IP Rights”) by our Products.
- We shall be entitled, at our discretion, to obtain a right of use for the Product infringing an IP Right or to modify the Product in such a way that the IP Right is not infringed or to replace it by an equivalent substitute Product which no longer infringes the IP Right. If this is not possible for us subject to reasonable conditions or within a reasonable period of time, the customer shall – provided that it has enabled us to carry out a modification – be entitled to the statutory rights of revocation (Rücktritt). We also shall be entitled to withdraw from the contract subject to the aforementioned conditions. The provisions of clause 5.9 shall apply accordingly.
- Any claims by the customer shall be excluded insofar as the customer is responsible for the infringement of the IP Right or it has not supported us to a reasonable extent in the defence against claims by third parties.
- Any claims by the customer shall be also excluded if the Products are manufactured in accordance with the specifications or instructions of the customer or if the infringement of the IP Right results from the use in combination/cooperation with another object not originating from us or if the Products are used in a manner not foreseeable by us.
- Our liability for damages in the event of infringements of IP Rights shall be governed by clause 7 in all other respects.
- Clause 5.1 shall apply mutatis mutandis to the limitation period for claims based on infringements of IP Rights.
- Unless otherwise stated below, any other or further-reaching claims by the customer on account of the infringement of third-party IP Rights shall be excluded.
7. Claims to Damages, Limitation of Liability
- We shall be liable to pay damages and reimbursement of futile expenses within the meaning of Section 284 BGB (hereinafter collectively referred to as “Damages”) on account of breach of contractual or non-contractual obligations only (i) in case of intent or gross negligence, (ii) in case of negligent or intentional injury to life, body or health, (iii) due to the assumption of guaranteed characteristics or durability, (iv) in case of negligent or intentional breach of essential contractual obligations, and (v) due to mandatory liability under the German Product Liability Act or other mandatory liability under law.
- In the event of a breach of essential contractual obligations, the damages shall be limited to the foreseeable damage, typical for the type of the contract, except in the event of intent or gross negligence or liability of Framework Robotics on account of injury to life, body or health or the assumption of guaranteed characteristics.
- Our obligation to pay damages shall not include the cost of replacing lost or damaged customer’s data and/or programs which are caused by a defect in our Product. Insofar the customer shall be obliged to affect data backups on a regular basis.
- No change to the onus of proof to the disadvantage of the customer is intended with the provisions of this clause 7.
8. Free Software, Open-Source Software
Our Products may contain free software and open-source software which are subject to separate license terms. The customer shall be obliged to observe and comply with these separate license terms. It shall perform any obligations arising thereof (in particular obligations regarding documentation, provision of the source code of the free or open-source software component).
9. Retention of Title
- We retain title to the Products delivered until full performance of all claims to which we are entitled on the basis of the business relationship.
- The customer shall be entitled to process or combine the Products within its normal course of business. We shall acquire joint ownership in the objects created as a result of such processing or combination in order to secure our claims referred to in clause 9.1; the customer hereby assigns such joint ownership to us.
- The customer shall be entitled to resell the Products in the normal course of business. The customer hereby assigns to us all claims arising from such resale in full, including all ancillary rights, to secure our claims referred to in clause 9.1; we hereby accept such assignment. The customer is entitled to collect the assigned claims. We may revoke any of the customer’s rights as set forth in this clause 9.3 in the event that the customer fails to duly comply with its payment obligations towards us, or is in default of payment, or suspends payments, or has filed for insolvency proceedings or similar proceedings for the settlement of debts with respect to its assets. The same shall apply, if the customer’s financial situation deteriorates materially or threatens to deteriorate, or if the customer is insolvent or over-indebted.
- Without our written consent, the customer shall not be entitled to dispose in any other way of the objects to which we retain title or joint ownership or of the claims assigned to us. The customer shall notify us immediately of any distraint or other legal impairment to the objects or claims concerned.
- If the realisable value of the securities exceeds our claims by a total of more than 10%, we shall release securities to this extent at our discretion at the request of the customer.
- In the event that the customer fails to comply with its contractual obligations, e.g. in case of default of payment, we shall be entitled to withdraw from the contract (Rücktritt) after expiry of a reasonable grace period; any other contractual and statutory rights shall remain unaffected.
- We shall be entitled to withdraw from the contract, without granting a grace period, if the customer suspends payment or files for insolvency proceedings or similar proceedings for the settlement of its debts.
- We shall also be entitled to withdraw from the contract, without granting a grace period, if the customer’s financial situation deteriorates materially or threatens to deteriorate, jeopardizing the fulfilment of a payment obligation to us, or if the customer is insolvent or over-indebted.
- Any statutory rights and claims shall remain unaffected by the rights referred to in this clause 10.
Rights to Auxiliary Means
- All trade secrets, practical knowledge, know-how, industrial property rights, (software) copyrights as well as any combination thereof (hereinafter collectively referred to as “Incorporeal Means”) used by us in the course of the performance of our services shall remain the sole property of Framework Robotics. Nothing shall be deemed to grant any rights of use or exploitation with respect to the Incorporeal Means to the customer.
- Unless expressly otherwise agreed upon with the customer, all tools, auxiliary models, work equipment, devices, models, moulds, etc. (hereinafter collectively referred to as “Corporeal Means”) made by us in the course of the performance of our services shall not be part of the Product and shall remain the sole property of Framework Robotics; Framework Robotics shall be entitled to all rights of use and exploitation of the Corporeal Means.
- All business or technical information coming from Framework Robotics (including drawings, samples, characteristics of Products, as well as other knowledge and experience) shall be kept secret as long as and to the extent that such information is not proven to be in public domain or has not been designated by us for disclosure by the customer to third parties; shall only be made available to those persons within the customer’s own operations who have a need to know for the use of such information and who are also obligated to maintain secrecy; remain the exclusive property of Framework Robotics; shall not be reproduced, reverse-engineered or used commercially without our prior written consent; and upon our request, shall be immediately returned to us or destroyed in full (including any copies or records made thereof).
- We reserve all rights to the information referred to in clause 12.1 (including copyrights and the right to apply for industrial property rights such as patents and utility models etc.).
- If any provision of these Terms and Conditions should be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. The contracting parties shall replace such invalid or unenforceable provision by a provision which comes as close as possible to the intended economic success.
- The exclusive place of jurisdiction for all disputes arising from or in connection with the contracts is Rostock, Germany. We are entitled to assert claims at the court having jurisdiction at the customer’s registered office.
- All contracts and all legal relationships arising therefrom shall be governed and construed exclusively by the laws of the Federal Republic of Germany to the exclusion of the rules on conflict of laws and the United Nations Convention on Contracts for the International Sale of Goods (CISG).