General Terms and Conditions
General terms and conditions for carrying out of service and production assignments by IHP Solutions GmbH Version: April 2016
The purpose of IHP Solutions GmbH (after: Solutions), a 100% subsidiary of IHP GmbH – Innovations for High Performance Microelectronics/Leibniz-Institut für innovative Mikroelektronik, is to provide services in the area of applied technical development, technical measurements and small volume production of ASICs including next production steps; thus breaking new ground in terms of technology. Solutions performs its services exclusively for civil purposes. The following Terms & Conditions are tailored to such particular aspect.
1. Field of application
1.1 The following Terms & Conditions apply to all further services for technical development, technical measurements and small volume production of ASICs including next production steps to be rendered by Solutions, which are based on orders. Any deviating, conflicting or supplementary conditions put up by the Principal do not become part of the contract unless Solutions agrees to their validity in writing.
2. Object of the contract, contract validity, scope of services
2.1 Object of the Service and Production Assignment are the services included in the list of services to be rendered by Solutions.
2.2 For a contract between Solutions and the Principal to be valid, a written confirmation by Solutions of the assignment is required.
2.3 If the quotation or the Service and Manufacturing Assignment include any time limits or deadlines, these are only binding, if Solutions has explicitly confirmed their binding character. If Solutions concludes that such binding time limit or deadline cannot be met, the causes for such delay are communicated to the Principal, and reasonable time adjustment will be agreed together with the Principal.
2.4 Solutions warrants that the service to be rendered by it will be in line with specifications and quality standards agreed. Additional assurances or guarantees regarding the quality of deliveries and service are granted exclusively on the basis of an explicit, written agreement.
2.5 Deliveries will be EXW Solutions pursuant to Incoterms 2000.
3. Prices and payment terms
3.1 All prices agreed do not include VAT; packaging, insurance, freight, assembly and further dispatch or transport costs.
3.2 Statutory VAT, as is required by the time the services are rendered, has to be added to the prices agreed, and will be shown separately in the invoice.
3.3 Immediately following order confirmation, advance payment of 50% of the contract price agreed is due. For standing orders, the value of the respective called order is relevant. The remaining amount is payable within 14 days following receipt of invoice. Any deviating agreements need to be held in writing. Payments are to be made without deductions to the bank account of Solutions, indicating the invoice no.
3.4 Offset against claims against Solutions is only permitted, if the counter- claim is either undisputed or found to be legally binding.
3.5 The Principal can exercise his right to withhold only, if his counter- claim is based on one and the same contractual relationship.
4. Results of work generated
4.1 Solutions remains the owner of existing copyright, inventions and further rights on incorporeal goods, (existing proprietary rights).
4.2 Unless explicitly stated otherwise in writing, any inventions made by Solutions staff, or by third parties involved by Solutions, in the course of carrying out the assignment are the property of Solutions.
4.3 Any inventions made jointly by staff of Solutions and of the Principal in the course of carrying out the assignment, including any proprietary rights consequentially granted, are owned jointly by both Parties to the con-tract. Any specific activities regarding such proprietary rights require an arrangement or the conclusion of a separate agreement on each single case. Any Party involved is entitled to use free of charge inventions made jointly, as well as the proprietary rights resulting from them. The Parties involved will decide jointly on granting licences on inventions made jointly and any third Party`s proprietary rights resulting from them.
If any of the Parties waives their rights to or resulting from the patent, the sole authority of disposal of the respective registration and/or the proprietary rights are transferred to the other Party. In this case, the waiving Party retains a free-of-charge, non-transferable right of use. Paragraph 4.3, section 3 applies accordingly to products falling under copyright act protection, which are created jointly by the Parties to the contract in the course of carrying out the assignment (shared copyright).
5.1 Solutions, its legal representatives and vicarious agents are liable to the Principal pursuant to the Product Liability Act, and for breach of duty and tortuous act, if caused with intent or by gross negligence. For violating essential contractual duties (main duties), Solutions, its legal representatives and vicarious agents are liable also in cases of ordinary negligence. However, such liability is in any case limited to foreseeable damage typically related to such contract. Such exclusion or limitation does not apply to liability for damage to life, for physical injuries, or for damaged health.
5.2 Beyond that, Solutions will not assume any additional liability, unless mandatory and prescribed by the law. Any liability for consequential damage is explicitly ruled out.
5.3 No liability is assumed for breach of proprietary rights of any third Party during the use by the Principal of results generated by Solutions, unless Solutions had been aware of such breach by the time of transferring these results, and has, with intent or by gross negligence, failed to inform the Principal about this.
6. Defect claims
6.1 The service owed has to be in line with the service description and the scope of services agreed.
6.2 Solutions does not assume liability regarding the commercial usefulness of its service rendered according to the purpose of use pursued by the Principal.
6.3 If the service provided by Solutions appears to be defective, Solutions will at first be given an opportunity to remedy such defect – depending on the character of the defect and all further circumstances also several times – by providing supplementary service, which according to choice can be rework or substitute delivery. For such purpose, the Principal has to concede to Solutions an appropriate limit of time, considering the particular circumstances of a single case of a service. .
6.4 If Solutions refuses to render supplementary service, if supplementary service fails, or if it cannot be reasonably expected from the Principal, the Principal may choose either to withdraw from the Contract, or to claim the lowering (reduction) of remuneration owed, or to claim dam- ages. Such right to withdraw can only be exercised in case of a grave defect. It expires, if the Principal does not declare withdrawal within 14 days, by the latest, following notification on such refusal or the failure of supplementary service, nor declares withdrawal within 14 days, by the latest, following the moment that unacceptability of supplementary service has become clear to the Principal. Solutions is liable to pay damages only on the basis of further preconditions, as set forth in paragraph.
6.5 The Principal is obliged to examine with no delay the service delivered by Solutions, and to notify any defects immediately. Any claims resulting from discernible defects can only be alleged, if they are reported to Solutions within 14 days following delivery.
6.6 Claims resulting from defects lapse according to paragraph 7.
7. Statute of Limitation
7.1 Claims resulting from defects as to quality and defects in title are subject to 12-month limitation, unless prescribed otherwise by the law.
7.2 Limitation of claims resulting from defects starts from the time of delivery.
7.3 Negotiations between the Parties on claims or circumstances being the basis for such claims lead to limitation being suspended. However, such suspension ends, if one of the Parties to the Contract does not fulfil within 4 weeks time the desire of the other Party to continue these negotiations.