The following provisions apply for all contracts of Kellendonk Elektronik GmbH, regardless of content and legal nature of the contractually assumed services. Terms and conditions of our contractual partners that deviate from these are not accepted, even where we do not expressly object to them.
2.1 The scope of both parties' obligations is set down as functional specification. The following supplementary provisions shall also apply. In the exceptional case where no functional specifications are agreed upon, Kellendonk Elektronik GmbH will still provide their services based on these General Terms and Conditions.
2.2 Kellendonk Elektronik GmbH will provide the services under to this contract based on accepted rules and current state of the art technology, and under consideration of industry-standard care. This agreement only relates to the contractual properties and conditions of an object and constitutes no warranty in any legal sense.
2.3 Kellendonk Elektronik GmbH shall receive from their contractual partner all components, documentation, information and data required for the development project and for the scope of service (especially relating to functional specifications).
Kellendonk Elektronik GmbH shall not be obliged to inspect any components, documentation, information and data transferred to it for flaws at the development project's start.
2.4 Kellendonk Elektronik GmbH shall take no responsibility for service delay due to any violation of the customer's obligation to co-operate.
2.5 Kellendonk Elektronik GmbH shall have the right to claim reasonable indemnification where the customer's acceptance is delayed due to his omitting any cooperational action. The amount of indemnification is determined by the contract's duration and the compensation agreed upon, as well as by what Kellendonk Elektronik GmbH saves in terms of expenses or may gain by otherwise employing their manpower due to the delay.
2.6 Kellendonk Elektronik GmbH shall not be responsible for any unforeseeable loss of the employee who was assigned to the development project, force majeure and any other events that were unforeseeable at the closing of the contract, which make their services at least temporarily impossible or unreasonably difficult.
3.1 Obvious defects must be declared in writing within a period of two weeks after delivery; If this is not done, no rights arising from product defects may be claimed. The message is deemed given in due time if it is posted in time.
This provision shall not apply where a defect is fraudulently concealed.
3.2 Defects are removed within a reasonable period of time. If any period of time is reasonable is especially decided according to whether or not a defect could have been recognized under testing conditions. Where no testing conditions were agreed upon, typical testing conditions are deemed agreed upon. Kellendonk Elektronik GmbH may, at their discretion, also provide a replacement of the same value. For this, they assume any required expenses where these are not increased because the object was transferred to any other place than the recipient's business address, unless this transfer reflects the intended use of the object.
3.3 Where supplementary performance (rework or replacement delivery) fails, is refused or unacceptable, the customer may, at his discretion, reduce the purchase price or withdraw from the contract. Where there is only a minor breach of contract, especially in case of minor defects, however, he shall have no right to withdraw from the contract. Rights to damages claims or compensation for expenses arising due to defects of the product are not affected by this provision. For this, the following section 4 (liability) shall apply.
3.4 Any rights arising from defects of the product shall proscribe after one year. This provision shall not apply where a defect is fraudulently concealed or where any warranty is assumed in this respect. It also shall not apply for damages arising from harm to life, body or health or in case of malice or gross fault.
4.1 Kellendonk Elektronik GmbH are liable on the merits for intentional and grossly negligent acts of their own account, as well as for these acts when committed by their legal representative, executives and other auxiliary persons.
4.2 They are also liable on the merits for culpable violations of such contractual obligations as are indispensable for reaching the contractual purpose (so-called cardinal obligations); where this is case, they are also liable for negligence on the account of their auxiliary persons.
4.3 Kellendonk Elektronik GmbH are liable for the full amount of loss only for their own grossly culpable acts and for grossly culpable acts committed by their legal representative and executives. Apart from this, any liability is limited to indemnification for typically foreseeable damage.
4.4 Any further liability from or outside of the contract is excluded.
4.5 Any rights arising from defects of the product shall proscribe after one year. This shall not apply in case of wilful intent or gross fault.
4.6 All of the above limitations of liability shall not apply where there was any harm to life, body or health. They also shall not apply where a defect is fraudulently concealed or where any warranty is assumed in this respect. Liability according to the Product Liability Act shall not be affected.
The contractual parties are obliged to keep any information that becomes known to them in connection with the contract and that is indicated as confidential or recognisable as business or operational secrets for any other reason confidential indefinitely and not to pass it on to any third partiers or use it in any other way.
6.1 The customer shall receive the exclusive, sub-licensable, transferable rights of use for the technical knowledge that was gained in the scope of the development made because of his order free of charge for the application the order was based on. The contractor reserves a non-exclusive right of use for the application the order was based on for his own scientific research and development purposes. Kellendonk Elektronik GmbH shall have the right to make free use of the technical know-how outside of the application, i.e. grant rights of use in and outside of the scope of third parties' research and / or development requests, without requiring any consent for granting of rights of use from the original customer for whose project the technical knowledge was gained.
6.2 The customer shall receive the exclusive, sub-licensable, transferable rights of use of the copyright-protected results from the development made because of his order free of charge for the application the order was based on. Kellendonk Elektronik GmbH reserve a non-exclusive right of use for the application the order was based on for their own scientific research purposes. Kellendonk Elektronik GmbH shall have the right to make free use of the copyright outside of the application, i.e. grant rights of use in and outside of the scope of third parties' research and / or development requests, without requiring any consent for granting of rights of use from the original customer for whose project the copyright arose.
6.3 The customer shall receive the exclusive, sub-licensable, transferable rights of use of the industrial property right protected results of the development made because of his order against payment for the application the order was based on. Kellendonk Elektronik GmbH reserve a non-exclusive right of use for the application the order was based on for their own scientific research purposes. Kellendonk Elektronik GmbH shall have the right to make free use of any industrial property rights outside of the application, i.e. grant rights of use in and outside of the scope of third parties' research and / or development requests, without requiring any consent for granting of rights of use from the original customer for whose project the industrial property rights arose.
6.4 Kellendonk Elektronik GmbH may initially apply for property rights for any invention made during any work on the project in their own name and at their own expense, and inform the customer afterwards about successful application after receipt of the respective patent offices confirmation of receipt. The contracting partners shall reach an agreement about which other states the patent is to be filed in and in whose name and at whose expense it is to be filed no later than 5 months before the end of the priority period. Where one contracting partner has no interest in applying for a patent in another state, further follow-up on applications or maintain property rights already granted, it shall inform the other contracting partner of this without any culpable delay, so that the other contracting partner may take the required steps at its own expense while complying with any time limits. The contracting partner offering these rights shall - where necessary - cooperate for these measures (e.g. notarised patent transfer).
6.5 Where any previously existing Kellendonk Elektronik GmbH KNOW-HOW, copyrights or industrial property rights (inventions, applications, property rights granted) are required for fulfilling an order and / or to exploit the development results, the customer shall receive a non-exclusive, sub-licensable, non-transferable right of use against payment.
6.6 The conditions for granting rights of use according to the provisions above are - where required - stipulated by the contracting partners in a separate agreement.
6. 7 Where Kellendonk Elektronik GmbH violates any kind of existing industrial property rights (copyrights, patent rights, utility model rights, etc.) under the scope of their order, the risk for this shall be assumed by the customer exclusively. The customer shall see to it that no third parties' property rights are violated under the scope of his order. Kellendonk Elektronik GmbH shall retain its claims to compensation even where such a violation of rights has happened.
7.1 The contracting partners' legal relations are subject to the laws of the Federal Republic of Germany. The provisions of UN Law on the International Sale of Goods (CISG) shall not apply.
7.2 Place of delivery for services rendered by Kellendonk Elektronik GmbH and payments made to it shall be their business location.
7.3 In case of any disputes, the parties shall first try to reach a mutual agreement.
7.4 Where this is not successful, Cologne shall be place of jurisdiction for any disputes arising from this contract for both parties, if the client acts as a commercial businessman.
7.5. Where there are any gaps in the agreement, or where any provision of this agreement is or becomes wholly or partially invalid, the remaining provisions of the agreement shall not be affected.
7.6 Changes and amendments to the agreement are only valid when made in writing.
7.7. Where there are any gaps in the agreement, or where any provision of this agreement is or becomes wholly or partially invalid, the agreement's contents shall be determined by legal provisions. Instead of the missing or invalid provision, such provision shall be deemed agreed upon as comes as close as possible to the commercial purpose originally intended for the missing or invalid provision by the contracting partners.
