Standard Terms and Conditions of INVENTUS Development GmbH
Version 1.0, as at 10 January 2018
I. SCOPE OF APPLICATION
1. All, including future, deliveries and services provided by INVENTUS Development GmbH, Number 181, 6771 St. Anton in Montafon, Austria ("INVENTUS") to a customer ("CUSTOMER") with regard to an order awarded to INVENTUS, such as the development, design of a prototype or product, construction of a prototype and/or the provision of any other service, such as preparing an industrialisation plan (hereinafter referred to as "Ordered Item") and/or conducting a product test (hereinafter referred to as "Product Test"), shall be subject to these Standard Terms and Conditions ("STC"), as amended, regardless of whether or not reference is made to them on a case-by-case basis. Application of any other standard and/or special terms and conditions and/or other terms and conditions of the CUSTOMER and/or third parties of any type whatsoever shall be expressly excluded with regard to the business relationship with INVENTUS, and INVENTUS hereby expressly excludes applicability of any such other terms and condition, and INVENTUS' silence and/or any acts in performance on the part of INVENTUS shall not result in the applicability of any such provisions.
2. Additional or deviating agreements, ancillary agreements or representations or amendments to these STC, including, specifically, contradicting terms and conditions of the CUSTOMER and/or third parties shall, in every single case, require the explicit, prior, written and duly signed confirmation by INVENTUS to take legal effect. Even if INVENTUS refers to a document that contains the terms and conditions of the CUSTOMER or a third party or makes reference to them, this shall not constitute consent to the application of such terms and conditions.
II. OFFERS, ORDERS AND CONCLUSION OF CONTRACT
1. Unless specified otherwise in the offer, INVENTUS shall consider itself bound to the offer for 30 days.
Project phases offered or offer numbers may be ordered individually as well. Orders shall become legally effective only upon written order confirmation (by letter, fax or e-mail) by INVENTUS, but, in its absence, no later than when the services ordered are performed. However, legal effectiveness shall always take place only to the extent of the respective order confirmation or actual performance.
2. Offers shall be submitted based on the details, information and documents on the requested specifications, infrastructure at the Customer, any special requirements, standards to be complied with etc, which have been provided by the CUSTOMER (hereinafter referred to as "Customer Information"). The Customer shall answer promptly any questions INVENTUS may have and provide the requested information. The Customer shall be responsible for the accuracy and completeness of the Customer Information; except for obvious errors and mistakes, INVENTUS shall have no obligation of verification.
The CUSTOMER shall review offers submitted by INVENTUS promptly. If no objection is raised within seven working days from receipt, the order confirmation shall be acknowledged as correct and fully accepted. Specifically, if no such objection is raised, the requirements for the necessary infrastructure at the Customer, including interfaces and system environment with regard to software, shall be considered confirmed as binding.
INVENTUS shall be notified of any amendments and requests for additional information no later than when the order is placed, prior to receipt of the order confirmation. Should this require changing the order, INVENTUS shall review if the changes can be implemented. If they can be implemented, but would lead to a change in the scope of delivery, INVENTUS reserves the right to correct the offer or the order confirmation, including the price. Information provided at a later point and resulting in a change in the scope of delivery shall, in any event and always, be considered as modification requests subject to payment.
3. Information given in offers and/or order confirmations of INVENTUS which are based on obvious errors, such as typing and calculation errors, wrong names or similar mistakes, shall not oblige INVENTUS. Instead, the obviously intended explanation shall apply.
4. Unless the order confirmation specifies otherwise, the prices stated in an order confirmation shall apply "ex works" (EXW Incoterms 2010) from INVENTUS, including costs of packaging of the Ordered Item. Statutory value-added tax shall not be included in the prices stated; it shall be stated separately on the invoice at the statutory rate on the day when the invoice is issued, if requested.
5. If INVENTUS submits an offer and no order materialises, INVENTUS reserves the right to invoice works and costs of the offer, the cost estimate and/or accompanying documents (e.g. plans) to the CUSTOMER.
III. ORDER PROCESSING
1. The purpose of the cooperation is to produce and deliver the Ordered Item or to conduct the ordered Product Tests. Any requirements and specifications shall be defined separately in a written statement of work (hereinafter referred to as "Statement of Work"). The Statement of Work shall become binding when signed by both parties to the contract.
2. Only the specifications expressly agreed in the Statement of Work or the conduct of the ordered Product Tests in accordance with the defined parameters shall form the content and scope of services. Requirements not expressly designated by the CUSTOMER and not confirmed by INVENTUS in writing shall hence not be included in the scope of delivery and services and shall not be due.
The prerequisite of providing services in conformity with the contract shall be the timely delivery of the complete Customer Information. The CUSTOMER shall ensure that the Customer Information is available at least when the works are started; any default or lack of performance resulting from delay, incompleteness or inaccuracy shall not be deemed as the fault of INVENTUS. On the contrary, INVENTUS is entitled to claim any resulting extra costs. Same shall apply to any subsequent requests for Customer Information by INVENTUS.
Should it turn out, after the order has been placed or when the order is processed by INVENTUS, that further services have to be provided, such services shall be ordered separately. Such additional orders shall be subject to the provisions of Article 2 accordingly.
3. INVENTUS shall make sincere and honest efforts to deliver the Ordered Item or conduct the Product Test in accordance with the agreed specifications. For providing the agreed services, the CUSTOMER shall pay to INVENTUS the agreed, separately specified remuneration at the dates defined. While taking into account the risk inherent in every development project, that is not achieving the defined target, the parties to the contract expressly note that INVENTUS shall not owe any success, but only to make sincere and honest efforts. As a result, the agreed remuneration shall be due to INVENTUS no matter if the service ordered is developed or provided in accordance with the agreed specifications, except if INVENTUS has demonstrably obstructed successful performance in a grossly negligent or wilful manner.
4. The parties to the contract shall also define in writing a project time schedule including milestones in the Statement of Work. Changes of the project time schedule shall be binding only if made in writing. Deadlines defined in the project time schedule shall be binding only if this has been expressly stated in the project time schedule. Should INVENTUS be delayed in meeting a deadline according to the project time schedule, INVENTUS shall inform the CUSTOMER in writing and suggest a solution on which the CUSTOMER shall comment promptly. Changes shall be considered accepted when the contact persons nominated have given their mutual written consent. The CUSTOMER consents at this point to grant INVENTUS at least the option of subsequent performance.
5. If requested, INVENTUS shall inform the CUSTOMER about the activities completed. The type and scope of the reports shall depend on the scope of services agreed in the Statement of Work. The reports and/or any documents sent with them, including any internal and external sources, shall be treated as confidential by the CUSTOMER and shall not be disclosed to third parties; the provisions on confidentiality according to these STC shall apply. In any event, INVENTUS shall not be obliged to include such information in the documentation that constitutes Background of INVENTUS. The reports shall be checked for completeness by the CUSTOMER and additions, if any, shall be requested from INVENTUS within 5 working days. Requests for additions outside the sphere of the agreed scope of development shall be made against payment.
6. The services ordered shall be provided on the business premises and by means of the facilities and equipment of INVENTUS – namely the permanent establishment of INVENTUS Development GmbH in St. Anton i. M, Austria. The parties to the contract shall define separately in writing who shall make available the required resources, if any, and bear the costs of specific investments.
7. If customer-specific tools have to be made or purchased for producing the Ordered Item or conducting the Product Test, the costs shall be covered by the CUSTOMER. Such tools shall be the property of the CUSTOMER, but shall be left permanently as a loan to INVENTUS for the duration of the cooperation. INVENTUS shall use such tools only for contractual performance and treat them with care.
8. INVENTUS shall be free to use subcontractors for providing the contractual services.
9. The parties to the contract shall nominate one person each as a central point of contact for all questions and concerns with regard to the contractual project. Declarations made by such persons shall be binding on the contractual party on whose behalf such person acts.
It is explicitly stated that the offered services do not include any support and/or support services given by INVENTUS, except if such support and/or support services and the respective terms of service have been agreed expressly in writing. The obligation of service shall end when the Ordered Item or the Product Test is handed over.
10. Insofar as proper execution of the order requires the presence of INVENTUS on the business premises of the CUSTOMER, the CUSTOMER shall make available to INVENTUS separate work places including such infrastructure and documents as required for processing. Travel expenses incurred shall be invoiced against presentation of evidence. Unless agreed otherwise, travel costs shall be set at € 1/km, and expenses shall be due as agreed.
The CUSTOMER shall ensure that employees of INVENTUS are granted the required access authorisations and competencies to conduct the task ordered. Any failure in this respect by the CUSTOMER shall be at the expense of the CUSTOMER, and INVENTUS shall have a claim for compensation for the resulting extra costs, downtimes etc.
IV. CHANGE MANAGEMENT
1. The parties to the contract shall inform each other about any changes that may occur or changes requested regarding the time schedule and/or the service to be provided by INVENTUS. The party to the contract in whose sphere the change occurs shall inform the other party to the contract promptly in writing. At the same time, the party to the contract shall suggest a solution on which the other party to the contract shall comment promptly. Changes are considered adopted when both contact persons nominated have given their mutual written consent.
2. Changes of the time schedule which occur due to events outside the sphere of INVENTUS or the CUSTOMER shall not lead to a delay. The period of time granted shall be interrupted for the duration of the event or its elimination, and the respective deadline shall be extended accordingly.
3. If INVENTUS is responsible for a change that is needed, the CUSTOMER shall grant INVENTUS at least an extension for the duration required. If the CUSTOMER is responsible for a change that is needed, the respective periods of time to be met by INVENTUS shall be interrupted and shall continue to run after the event has been eliminated. If the interruption lasts for more than 30% of the period affected by the change, INVENTUS shall be entitled to adequate compensation for the associated costs, such as downtimes.
4. If INVENTUS realises that the specifications cannot be met, or cannot be met using reasonable efforts, or if INVENTUS becomes aware that third-party rights, such as a patent (hereinafter referred to as "Third-Party Right") could be infringed when the order is fulfilled or the Ordered Item is provided, INVENTUS shall inform the CUSTOMER in writing including an appropriate explanation. This inability to fulfil the commitment or threat of infringement of rights shall constitute an important cause for termination for INVENTUS and the CUSTOMER. If the CUSTOMER is at fault for the inability to fulfil the commitment or the CUSTOMER is at fault for not informing INVENTUS of an existing Third-Party Right, this shall be considered as a reason for termination caused by the CUSTOMER, and INVENTUS shall be entitled to the full remuneration agreed. In the event of not being at fault for the inability to fulfil the commitment or if the CUSTOMER demonstrably is not at fault for being unaware of the Third-Party Right, INVENTUS shall be entitled to a proportionate compensation for the services already provided. If inability to fulfil the commitment has been caused by INVENTUS in a grossly negligent manner, and if the CUSTOMER terminates for important cause, INVENTUS shall refund the services received; any other further-reaching claims shall be excluded.
1. INVENTUS shall owe only its sincere and honest endeavours to achieve the specifications. The ordered works shall be considered completed in any event if the Ordered Item meets the agreed specifications or the Product Test has been conducted in accordance with the defined requirements. The procedure to determine this shall be agreed and identified in the Statement of Work.
2. INVENTUS shall contact the CUSTOMER when INVENTUS believes that the works have been completed. The parties to the contract shall agree on a date for verification which shall be set four (4) weeks after receipt of the notification of completion at the latest and shall take place at the head office of INVENTUS. Should the CUSTOMER delay the date without reason, INVENTUS shall be entitled to compensation for the resulting additional costs, downtimes etc.
3. The parties to the contract shall determine, in due consideration of the specifications, whether the specifications have been met. If minor and insignificant deviations from the specifications which do not oppose the proper usage or use for the respective purpose of the Ordered Item as declared or which do not obstruct the purpose of the Product Test are identified, the specifications are considered fulfilled. However, INVENTUS agrees to correct them within an appropriate period of time. If the CUSTOMER believes that the specifications have not been fulfilled, INVENTUS shall be available for further efforts. INVENTUS shall invoice the CUSTOMER for such activities that are no longer covered by the agreed remuneration. Should further-reaching activities be required, INVENTUS agrees to be available for such activities against appropriate reimbursement for expenses, and the parties to the contract shall agree on the terms and conditions and lay them down in writing.
4. Deviations which are not communicated during verification shall be deemed as changes subject to payment in any event.
5. The services to be provided shall comprise only the specifications explicitly agreed. Moreover, INVENTUS shall ensure that the laws, regulations, guidelines, and standards made known to INVENTUS are complied with. Laws, regulations, guidelines, and/or standards not made known to INVENTUS by the CUSTOMER at the time of order submission at the latest need not be complied with.
1. Unless agreed otherwise in writing in advance, any and all deliveries shall be made in accordance with INCOTERMS as amended, EXW business premises of INVENTUS Development GmbH in St. Anton i. M, Austria. The CUSTOMER shall organise shipment and shall bear the associated costs. If the CUSTOMER wishes to insure the shipment, the CUSTOMER shall be responsible for such insurance. Should INVENTUS organise shipment, this shall not change the time of transfer of risk.
2. The delivery time shall be considered kept if INVENTUS has sent its ready-to-ship notification within the agreed period.
3. The CUSTOMER shall explicitly agree to reasonably acceptable partial deliveries, accept them and pay for them in accordance with the agreed terms of payment.
4. INVENTUS shall send the customer its ready-to-ship notification at least 7 days in advance. INVENTUS shall make the Ordered Item available for collection in suitable packaging for transport at the indicated date. Costs of transport and packaging shall be covered by the Customer.
5. If shipment or provision of the ready-to-ship Ordered Items, in particular including permissible partial deliveries, is delayed for reasons in the sphere of the CUSTOMER, specifically if the CUSTOMER refuses acceptance or does not collect the items, or INVENTUS does not receive the due purchase price timely, transfer of risk shall occur upon ready-to-ship notification, INVENTUS may store the Ordered Item concerned at the expense and risk of the CUSTOMER, and all costs following transfer of risk shall be borne by the CUSTOMER.
6. INVENTUS shall inform the CUSTOMER as soon as delays, for whichever reason, become apparent. The CUSTOMER shall grant INVENTUS at least two appropriate extensions of time, except if this cannot be reasonably expected from the CUSTOMER.
7. Any delay in delivery that can be attributed to the sphere of the CUSTOMER, in particular including any change requests by the CUSTOMER, shall not constitute a delay and shall result in an appropriate extension of the delivery period.
8. Unforeseeable circumstances and/or circumstances outside the sphere of influence of INVENTUS, such as all events of force majeure, acts of war, official interventions and prohibitions, transport and customs delays, transport damage, energy shortages, industrial conflicts which obstruct INVENTUS in providing its services, do not trigger delivery delays. The aforementioned circumstances shall also create entitlement to extend the delivery period, if they occur at the suppliers of INVENTUS. Moreover, delayed delivery or non-fulfilment on the part of suppliers of INVENTUS does not trigger delay. INVENTUS shall inform the CUSTOMER about such circumstances as soon as they become known.
Non-performance or improper performance of INVENTUS, damage and/or other consequences at the CUSTOMER and/or at INVENTUS as well as, in particular, additional expenses incurred by INVENTUS resulting from insufficient Customer Information shall be at the expense of the Customer to the extent caused and shall release INVENTUS from its obligations or entitle INVENTUS to invoice the additional expenses caused thereby to the Customer.
9. INVENTUS may withdraw from the contract if it is impossible to predict when an event according to Article 5. or 8. will come to an end.
10. If due to its features and condition the Ordered Item has to be delivered other than by van, INVENTUS shall, for lack of another agreement, choose and communicate to the CUSTOMER a suitable shipping method, e.g. electronic, by post etc. The CUSTOMER shall ensure that INVENTUS is able to make appropriate delivery. Should delivery be impossible for reasons of the CUSTOMER, INVENTUS shall be entitled to compensation for the resulting additional costs, downtimes etc.
1. INVENTUS shall be entitled to the remuneration agreed separately for the services provided. This remuneration agreement shall be made in writing and shall become binding upon written acceptance by both parties to the contract. Unless explicitly stated otherwise in writing, all figures of the agreed remuneration or other prices shall be net figures, meaning that they, in particular, do not contain any taxes, customs duties, charges etc., which the Customer/ordering party shall have to bear.
2. Payments shall be transferred to the account communicated by INVENTUS within 30 days from the event triggering payment and receipt of invoice. Payments shall be considered made when the agreed amount is freely available to INVENTUS at the head office of INVENTUS. On request and following agreement, 30% of the agreed remuneration can be declared due for payment or partial payments may be agreed.
3. Should it turn out that due to unexpected circumstances, for whichever reason, the costs of the actual services performed are not completely covered by the agreed remuneration, INVENTUS shall notify the CUSTOMER promptly and send the CUSTOMER an overview of the additional costs to be expected including an explanation. The CUSTOMER shall comment on this matter within 7 working days. If no agreement is reached, INVENTUS shall be entitled to termination for important cause.
4. If the CUSTOMER is in default of making the agreed payments, INVENTUS shall be entitled to retain the services until the agreed amount is received. INVENTUS reserves the right to provide the agreed services only upon presentation of an unconditional and temporally unlimited bank guarantee of an Austrian bank ensuring payment at first request.
5. Offsetting against claims of INVENTUS shall be permitted only if the counterclaim has been found to be uncontested or legally binding.
VIII. TRANSFER OF OWNERSHIP
Until the purchase price due is paid in full by the CUSTOMER, INVENTUS reserves the right of ownership in the Ordered Item. In the event that the Ordered Item is processed further or integrated as an inseparable component of the complete item, INVENTUS shall become co-owner of the new complete item in proportion to the value of the components. Until further notice, the CUSTOMER shall be entitled to resell the Ordered Item or the complete product resulting from processing in the course of its ordinary business operations under retention of ownership. Until the purchase price is paid in full, the CUSTOMER shall assign to INVENTUS any and all claims due to the CUSTOMER from reselling the Ordered Item in separate form or as part of the complete product in the amount equal to the value of the Ordered Item. The CUSTOMER shall be entitled and undertakes, until further notice, to collect the assigned claims from its buyers. INVENTUS may inform the buyers of the CUSTOMER of the assignment at any time, and INVENTUS shall be entitled to secure the Ordered Item or the complete product or request the buyers to make direct payment to INVENTUS in the respective amount, if the CUSTOMER does not fulfil its contractual obligations, in particular, does not treat the Ordered Item properly or defaults payment of the purchase price. An act of surrendering and securing shall not be considered as withdrawal from the contract and shall not annul the obligations of the CUSTOMER, in particular payment of the purchase price.
IX. Intellectual property
1. When the contract is concluded, both parties to the contract hold industrial property rights and/or know-how, which already exists on part of the respective party to the contract at the time when the contract is concluded, or for which application has been filed and/or already granted (hereinafter referred to as "Background"). Activities related to the Ordered Item may require the CUSTOMER to make its Background available to INVENTUS. INVENTUS shall be entitled to use Background of the CUSTOMER for and under the contractual development activities and services.
2. Concerning the contractual services, INVENTUS shall apply its existing knowledge, specifically including Background, if required for fulfilling the order. Any and all industrial property rights or intellectual property rights, specifically patent, trademark, utility model, copyright or other design rights, and/or rights to know-how and commercial, technical and process-related information, vest in INVENTUS solely and shall remain with INVENTUS. Except if explicitly agreed in writing otherwise, the CUSTOMER shall not be granted any rights whatsoever to INVENTUS Background, in particular no rights of use.
Ownership of and rights to any and all improvements, further developments and/or other continuation of its own Background shall also be solely due to INVENTUS. INVENTUS shall not be obligated to report such "own developments" to the CUSTOMER. The granting of any rights to use such own developments shall be agreed separately as well, while it shall be at the sole discretion of each of the two parties to the contract to conclude such contracts.
3. Should Background of INVENTUS be demonstrably indispensable for the CUSTOMER to use the Ordered Item or Product Tests (the burden of proof shall lie with the CUSTOMER), the parties to the contract shall negotiate the terms and conditions of INVENTUS potentially providing such Background to the CUSTOMER against payment. In any event, any right to use the Background of INVENTUS that may be granted to the CUSTOMER shall be subject to payment, non-exclusive, non-transferable, restricted to the use of the Ordered Item or Product Tests by, for, or on behalf of the CUSTOMER and for purposes of the CUSTOMER, but subject to the condition precedent of contractual payment of the agreed licence fees by the CUSTOMER. If there is a risk of the Background know-how becoming disclosed, approval shall be obtained from INVENTUS in writing prior to such use. INVENTUS expressly reserves the right to exclude certain Background from licensing.
4. Rights in the Ordered Item or the result of the Product Test that are not own developments shall be governed separately, such as in the Statement of Work. Services delivered to the CUSTOMER shall be treated as confidential by the CUSTOMER until an appropriate regulation can be found, and the rights shall be with INVENTUS. In any event, the CUSTOMER shall not submit any industrial property rights applications concerning the Ordered Item and/or an item derived therefrom, the design/form, content, application and/or execution, technology concerned, and/or the respective technical solution. Any applications for industrial property rights shall be subject to prior coordination with, and consent of, INVENTUS. Specifically, any intellectual property rights applications shall not contain any Background of INVENTUS whatsoever.
1. The CUSTOMER and INVENTUS will make available to each other various "Confidential Information" with regard to the service ordered, specifically in the form of documents, application explanations and/or diagrams, drawings, formulas, calculations, numbers, specifications, and the like – in paper form or electronic form, as well as materials, samples or oral explanations. Moreover, the information and results provided to the CUSTOMER by INVENTUS, such as the Ordered Item and/or Product Test and information concerning them shall be Confidential Information. Both parties to the contract shall maintain secrecy on any Confidential Information they have received from the other party to the contract, and shall not pass it on to any third parties in each individual case without the prior written approval, namely neither individual parts nor in its entirety, and neither in the form as received/developed, nor in a modified and/or processed form. The parties to the contract shall ensure that any and all Confidential Information is duly protected from theft, damage, loss or unauthorised access. The parties to the contract shall not try to draw any findings or conclusions from the Confidential Information, and shall not trace them back to the underlying information nor investigate them, neither through observation, investigation, reverse engineering nor testing.
2. This obligation of secrecy shall apply equally to all employees of the parties to the contract and/or third parties having entered into another contract with the parties to the contract, regardless of the type of contract and the legal provisions applicable to them, and the parties to the contract undertake to subject such persons to an obligation of secrecy that corresponds to this secrecy obligation and remind such persons regularly of this obligation.
3. None of the partners shall use the Confidential Information for any purpose other than the contractual purposes, that is providing the Ordered Item. Nevertheless, the parties to the contract shall be entitled to use Confidential Information for the purpose of enjoying and exercising the rights they have according to this agreement, to the extent absolutely necessary and while maintaining the interest of confidentiality of the other party to the contract as far as possible, and by observing other agreed restrictions. In the event that a right of use in the Background of INVENTUS is granted, the CUSTOMER shall ensure that secrecy is maintained by any suppliers.
XI. Warranty, liability
1. Regarding the services ordered, INVENTUS shall always owe only its sincere and honest efforts to achieve the Ordered Item, and the use of adequate personnel and suitable resources. INVENTUS shall not assume any warranty or liability, specifically no liability for producing or building the Ordered Item in accordance with the specifications and/or for successfully conducting a Product Test.
2. If the CUSTOMER requests achieving/implementing the Ordered Item and/or the Product Test according to a specific concept or specific requirements of the CUSTOMER, or if the CUSTOMER demands using certain predefined solutions and/or technologies, the CUSTOMER shall ensure that they and their application/use are free from any rights of third parties, and that INVENTUS shall not have to face any negative consequences during implementation (such as safety risks during implementation). In this context, the CUSTOMER shall release INVENTUS completely from any and all claims of third parties raised against INVENTUS for violation of such rights of third parties and against all other consequences, and shall indemnify and keep INVENTUS harmless, including from and against execution, and shall compensate INVENTUS for any damage, costs, expenses and drawbacks, specifically including from indirect patent infringement.
3. Regarding the contractual services, INVENTUS confirms that INVENTUS performs the respective development activities on its own or, when sub-suppliers are involved, ensures that the contractual obligations are met. Other than that, INVENTUS shall not assume any warranty, liability or other obligation whatsoever, specifically for the contractual services delivered to the CUSTOMER not being opposed by rights of third parties and/or the use/application of the Ordered Item or Product Test not interfering with rights of third parties.
4. It is expressly noted that INVENTUS shall provide the CUSTOMER only with prototypes, (development) samples, demonstrators, and the like. The parties to the contract agree that these parts shall serve the purpose of testing and/or verifying the development progress, but are not suitable for actual use. All actuators and the control are merely prototypes which are in need of further adjustments prior to productive operation. Operation shall be conducted by trained expert personnel only; any requirements made by INVENTUS shall be observed strictly. Specifically, use in critical and safety-relevant applications shall not be permitted. As a result, INVENTUS shall not assume any warranty for any properties whatsoever and/or liability for circumstances, damage and other consequences in connection with such prototypes, (development) sample/s, and demonstrators or their application and operation.
Any industrialisation plans that may have been prepared shall contain proposals and options. Due to the dependence on countless and unpredictable factors outside the sphere of influence of INVENTUS, they shall not claim to be complete, and no success shall be assured, not even if requirements are precisely met.
Product Tests shall be conducted in line with the requirements made by the CUSTOMER, in a particular environment and by adhering to particular parameters, and shall serve to verify options, characteristics or the like, as specified by the CUSTOMER. Consequently, the relevance of such Product Tests is always limited and shall be considered with regard to those conditions, and such Product Tests shall not claim general validity and conclusive certainty.
5. Whereas the liability of INVENTUS for intent, grossly negligent behaviour and personal injuries shall be subject to the relevant statutory provisions, the liability of INVENTUS, in any other event, shall be restricted as follows: INVENTUS shall be liable only for damage of the realised Ordered Item or the conducted Product Test itself. Therefore, any type of other damage as well as consequential damage, such as, in particular, damage caused by defects and consequential damage due to defects or collateral damage, business interruption, indirect damage, mere financial losses, damage from recalls or take-back activities, as well as loss of profit and/or similar claims shall be excluded. The level of liability shall, in any event, be limited to the applicable liability insurance sum which shall be at least EUR 100,000.-.
XII. Term of contract, termination
1. Cooperation between the CUSTOMER and INVENTUS regarding an Ordered Item or a Product Test shall commence when an offer is accepted and the parties to the contract have agreed on the Statement of Work in writing, and shall be concluded for the duration of the respective cooperation, and shall end upon the acceptance of the Ordered Item or delivery of the Product Test.
2. The right of either party to the contract to terminate the cooperation at any time for important cause shall remain unaffected. For this purpose, the party to the contract concerned shall inform in writing the other party to the contract that has caused the reason for termination and grant an appropriate period for ending the infringing behaviour. Should the granted period lapse without the infringing behaviour having been ended, termination shall take effect on the day following the last day of the granted period.
Important causes entitling INVENTUS to extraordinary termination, apart from the reasons listed in the relevant provisions, shall specifically include
- the CUSTOMER defaulting payment more than twice,
- the CUSTOMER violating its obligation of secrecy,
- the CUSTOMER violating laws, in particular applicable war weapons control laws, medical devices laws, and/or mandatory legal export/import restrictions as well as
- lack of credit worthiness and/or changed credit rating of the CUSTOMER.
3. The regulations on maintaining secrecy and granting rights shall remain in effect regardless of termination of the cooperation, for as long as permissible under the pertinent statutory provisions, but, in any event, for the duration of five (5) years following termination of the contract. If the validity of one provision is subject to temporal restriction, this shall not affect continued validity of other provisions.
4. After the cooperation has been ended, INVENTUS and the CUSTOMER shall fundamentally have to return to the other party of the contract its Confidential Information and delete any copies from data carriers within 14 days. This shall not apply if opposed by statutory retention obligations or if the system does not allow the return or final deletion (such as automatic backups). The obligation of secrecy shall apply after the contract has been terminated, regardless of the return obligation.
XIII. General provisions
1. Should one of the provisions of these STC be or become ineffective, the remaining provisions of the contract shall not be affected thereby, and the parties to the contract shall replace the provision concerned by a new, valid provision that comes closest to the purpose of the contract.
2. The parties to the contract undertake to assign the rights and obligations, of whichever nature, arising to them from this agreement to their legal successors, and each party to the contract shall be responsible towards the other party for ensuring that the provisions are complied with by such third parties. Incidentally, the rights and obligations arising to the parties to the contract from and/or in connection with this agreement shall not be assignable without the consent of the other party to the contract, except for INVENTUS granting them to companies of the INVENTUS group of companies.
3. Amendments and additions to this agreement shall be made in writing to take legal effect, while this requirement of written form may also be waived in writing only. Insofar as, according to this agreement, a declaration shall be made "in writing" or "in written form", such declaration shall be signed by the persons authorised to duly represent the respective party to the contract personally by signing with their names or notarially certified initials and transmitted to the other party of the contract in the original or by telefax. This written form described shall not be replaced by the electronic form.
4. This agreement shall take full precedence over previous agreements of the parties to the contract as concerns the subject matter. Insofar as the parties to the contract conclude a development agreement in addition to these STC, the provisions of the development agreement shall take precedence over these STC. The Statement of Work shall serve as an addition to these STC and shall amend them only if stipulated therein explicitly with regard to the provision concerned.
5. The provisions of this contract shall apply regarding consumers only to the extent that they are not in confIict with the pertinent mandatory statutory provisions, in particular including those under the Austrian Consumer Protection Act.
XIV. Applicable law, legal venue
1. These STC shall be governed by Austrian law, excluding the UN Convention on Contracts for the International Sale of Goods and the conflict-of-law rules.
2. If the CUSTOMER'S head office is not located in an EU member state, Iceland, Norway or Switzerland, all disputes arising from and/or in connection with these STC and/or this contractual cooperation and/or referring to their violation, dissolution or nullity, shall be finally settled according to the Rules of Arbitration of the International Chamber of Commerce (ICC), by an arbitrator appointed by the parties to the contract or appointed according to said Rules if the parties cannot reach agreement. The place of arbitration shall be Zurich, Switzerland; the language of arbitration shall be German. The arbitration award shall be final and binding, and both parties to the contract shall waive the right, if any, to appeal against the arbitration award before ordinary courts and/or other governmental authorities.
Irrespective of this agreement on the legal venue, INVENTUS reserves the right to assert claims for injunctive relief and/or claims for interim legal protection before any and all authorities of any type whatsoever, including state courts of any jurisdiction whatsoever.
If the CUSTOMER has its permanent seat in an EU member state, Iceland, Norway or Switzerland, the exclusive legal venue shall be the competent court having subject-matter jurisdiction for Feldkirch, Vorarlberg, Austria.