General Terms and Conditions for the completion of research and development contracts at fortiss GmbH

fortiss GmbH is a non-profit company with limited liability that exclusively and directly pursues non-profit objectives. It carries out contractual assignments in the field of applied research and enters into unchartered technological territory in doing so. The following Terms and Conditions are tailored to these special features.

 

1. Area of application

1.1 The following Terms and Conditions shall apply to all research and development contracts awarded to fortiss GmbH. Deviating, opposing or supplementary terms and conditions of the client shall not form part of the contract without prior written consent from fortiss GmbH. Unless the following Terms and Conditions stipulate otherwise, the provisions of service contract law (Sec. 611 et seq. BGB (German Civil Code)) shall apply to all research and development contracts.

1.2 Where the following Terms and Conditions contain an exclusion or limitation of the liability of fortiss GmbH, its legal representatives or vicarious agents, this exclusion or limitation shall not apply to liability for damages arising from loss of life, physical injury or damage to health, as well as liability under product liability law.

 

2. Object of the contract, period of performance

2.1 The object of the research and development contract is the work defined in the offer provided by fortiss GmbH.

2.2 If the offer or research and development contract stipulates a processing time or deadlines, these shall only be binding if fortiss GmbH has expressly acknowledged their binding nature. If fortiss GmbH becomes aware that a binding processing time or binding deadline cannot be met, it shall notify the client of the reasons for delay and shall agree on an appropriate adjustment with the client.

 

3. Fee

3.1 The fee shall be calculated as a fixed price. Notwithstanding this, the contracting parties may agree that the fee is to be charged according to effort, with a maximum cost limit, if applicable. VAT will be added to each fee.

3.2 fortiss GmbH shall immediately notify the client if it foresees that the results intended by the research and development contract cannot be achieved with the agreed fee. fortiss GmbH shall simultaneously propose an adjusted fee to the client. Should this be necessary for reasons which were neither foreseeable for fortiss GmbH when the contract was concluded nor that are the responsibility of fortiss GmbH and if no other agreement is reached with the client, then the proposed adjustment shall be binding.

 

4. Payments

4.1 Payments shall be due in accordance with the agreed payment schedule. In the absence of a payment schedule, the due date shall be the date specified on the invoice. Payments must be made in full to the specified bank account of fortiss GmbH with reference to the invoice number.

4.2 Setoff against claims of fortiss GmbH is only permissible if the counter-claim is uncontested or has been declared as legally binding.

4.3 The client may only exercise a retention right if its counter-claim is based on the same contractual relationship.

 

5. Research and development results, rights of use

5.1 The research and development results shall be made available to the client following completion of the contract as defined in the offer.

5.2 The client shall be granted a non-exclusive, royalty-free right of use for the purpose of application on which the contract is based to the inventions created as well as to the intellectual property rights registered and granted to fortiss GmbH when carrying out the contract. The client shall reimburse fortiss GmbH a share of the costs for the registration, maintenance and defence of the intellectual property rights that is to be agreed upon between the contracting parties and, when used, shall pay a fixed sum employee inventors fee that is to be agreed for the individual case.

5.3 Upon request and in lieu of the right defined in paragraph 5.2, the client shall be granted an exclusive, royalty-bearing right of use for the purpose of application on which the contract is based to the inventions created as well as to the intellectual property rights registered and granted to fortiss GmbH when carrying out the contract. This request must be submitted to fortiss GmbH in writing no later than three months following disclosure of the invention.

5.4 The client shall be granted a non-exclusive, royalty-free right of use for the purpose of application on which the contract is based to the copyright protected works, databases and know-how created when carrying out the contract. The granting of an exclusive right of use for the purpose of application shall require a separate agreement.

5.5 Inventions jointly created by the contracting parties when carrying out the contract (joint inventions) may be used and licensed by each contracting party without any financial compensation. The contracting parties shall each bear a share (to be agreed) of the costs for the registration, maintenance and defence of the intellectual property rights in question. With respect to the copyright protected works jointly created by the contracting parties when carrying out the contract (joint authorship), paragraph 5.5, sentence 1 shall apply.

5.6 If during completion of the contract already existing intellectual property rights of fortiss GmbH are used which are required for the client's utilisation of the results of the research and development, then the client shall be granted a non-exclusive, royalty-bearing right of use under a separate agreement, provided that no third-party rights preclude this.

5.7 Irrespective of the provisions of this paragraph 5 and the underlying agreements, fortiss GmbH and its affected employees shall in any case retain a non-exclusive, royalty-free right of use that is unlimited in terms of time and space to the research and development results for the purposes of research, teaching and development.

 

6. Third party proprietary rights

6.1 fortiss GmbH shall notify the client of any third party intellectual property rights that it knows of or becomes aware of when carrying out the contract which could preclude the agreed use as defined in paragraph 5. The contracting parties shall decide in joint consultation how such intellectual property rights shall be taken into consideration in the further completion of the contract.

6.2 In the event of an infringement of third party intellectual property rights, fortiss GmbH shall be liable under the provisions of paragraphs 7.3 and 8.4, sentence 1, if it has violated its obligation to notify the client. Any further liability - except the liability defined in paragraph 8 - is excluded.

 

7. Warranty, liability

7.1 fortiss GmbH shall complete the agreed research work using its knowledge of state of the art science and technology. No warranty will be assumed and there is no guarantee that the results of the research project are economically and technically viable and free from third-party proprietary rights.

7.2 fortiss GmbH carries out research and development work in the field of applied research and enters unchartered technological territory in doing so. The associated risks include the possibility that the research and development aims cannot be achieved or cannot be achieved in full. Under no circumstances shall fortiss assume any guarantees and/or assurances with respect to the object of the agreement.

7.3 Liability of fortiss GmbH, its legal representatives and vicarious agents in case of a violation of obligations and tort shall be limited to wilful intent and gross negligence. In case of a violation of essential contractual obligations (cardinal obligations), fortiss GmbH, its legal representatives and vicarious agents shall also be liable in case of slight negligence. In any case, liability shall be limited to foreseeable, contractually typical damages.

7.4 The client shall indemnify fortiss GmbH against any third-party claims under the provisions of product liability law.

7.5 Should fortiss GmbH neither fulfil the service as agreed upon nor do so at the time due nor in the manner agreed upon, then the client may only demand compensation in lieu of the service if the client has unsuccessfully set fortiss GmbH an appropriate deadline for completing the service that includes a statement that it would otherwise reject acceptance of the service after expiration of the deadline.

 

8. Special provisions for research and development work based on sales and service contracts

8.1 Where fortiss GmbH owes the creation or delivery of research and development results on the basis of an express commitment that correspond to the accepted state of the art, then in the case of defects the applicable provisions for sales contracts (Kaufrecht) and contracts for work and services (Werkvertragsrecht) shall only apply in accordance with the following paragraphs.

8.2 With respect to the particular risks of the research and development work as specified in paragraph 7.2, defects can only result from negative deviations from the quality agreement in text form. Should the results of the research and development work achieved by fortiss GmbH prove to be defective, then fortiss GmbH shall first be given the opportunity to supplementary performance - depending on the nature of the research and development results, the defect and other circumstances, also repeatedly - either by means of rectifying the defect or providing substitute delivery.

8.3 Should fortiss GmbH refuse a supplementary performance or if a supplementary performance cannot be achieved or the client cannot reasonably be expected to accept a supplementary performance, then the client may either withdraw from the contract or demand a reduction of the fee owed (reduction) or damages. The right to withdraw from the contract may only be exercised in case of a serious defect. The right shall lapse if the client does not declare its withdrawal from the contract within 14 days after receiving notification of the refusal or failure of the supplementary performance, or at the latest 14 days after the date on which it becomes clear that the client cannot reasonably be expected to accept a supplementary performance. fortiss GmbH shall only pay damages in accordance with the further provisions of paragraph 7.3 and - if it has refused a supplementary performance - paragraph 7.5.

8.4 In case of a defect in title resulting from an infringement of third party intellectual property rights, fortiss GmbH shall only be liable if such rights apply in the Federal Republic of Germany, if the client uses the research and development results in a manner consistent with the contract and in this respect if a third party legitimately uses these and the client has immediately notified fortiss GmbH in writing of the use by such third party. Supplementary performance as defined in paragraph 8.2 shall be completed by fortiss GmbH by either obtaining a contractual authorisation for the client's use or by modifying the results of the research and development so that the relevant third party intellectual property rights are not infringed.

8.5 The client shall inspect the research and development results provided by fortiss GmbH without undue delay and immediately report any defects. Claims for recognisable defects shall only apply if they have been reported to fortiss GmbH within a period of 14 days from the date of delivery.

8.6 Claims due to defects shall be limited in accordance with the provisions of paragraph 9.

 

9. Limitation

9.1 Claims of the client for breach of obligations and tort shall expire within 12 months. This shall not apply if fortiss GmbH is liable on the basis of wilful intent or gross negligence.

9.2 Should acceptance of the research and development results be agreed upon, the limitation period for claims due to defects as defined in paragraph 9.1 shall commence upon acceptance, otherwise upon delivery.

9.3 Negotiations between the contracting parties over claims or circumstances giving rise to claims shall suspend the limitation period. The suspensive effect shall end if one of the contracting parties has not complied within 4 weeks with the request of the other contracting party to continue negotiations.

 

10. Retention of title

10.1 The client shall obtain ownership of the research and development results and the rights of use defined in paragraphs 5.2, 5.3, 5.4 and 5.6 only once the agreed fee has been paid in full. Ownership and rights of use held by fortiss GmbH may neither be pledged nor transferred as a security.

10.2 In the event that the ownership of fortiss GmbH to the research and development results lapses through combination, commingling or processing, it is already hereby agreed that the ownership to the combined object created in such a case shall, until full payment of the agreed fee, be proportionally assigned (invoiced value) to fortiss GmbH.

10.3 In the event of an onward sale of the research and development results, the client shall cede all rights in rem from the onward sale to fortiss GmbH until full payment of the agreed fee.

 

11. Confidentiality

11.1 For the duration of the contract and for a period of five years following its termination, both contracting parties shall not make accessible to third parties information of a technical or commercial nature that has been disclosed to one another and declared as confidential. This shall not apply to information known or generally accessible to the other contracting party or to the public before disclosure, or information which becomes known or generally accessible to the public after disclosure without any involvement or fault on the part of the other contracting party, or that corresponds to information disclosed or made accessible to the other contracting party by an entitled third party, or independently developed by an employee of the other contracting party not in possession of the information disclosed.

11.2 Third parties within the meaning of this provision shall not include subcontractors of fortiss GmbH if these have been entrusted with a part of the services by fortiss GmbH within the context of the contract and if they have been placed under an obligation of confidentiality.

 

12. Publication, advertising

12.1 After prior consultation with fortiss GmbH, the client shall be entitled to publish the research and development results and disclose the name of the author. The agreement between the parties must ensure that e.g. dissertations, master's theses or registrations of intellectual property rights will not be impaired. The client may only use the name of fortiss GmbH for advertising purposes with its express consent.

12.2 The following shall apply to publications made by fortiss GmbH and its employees: The client acknowledges the basic obligation of fortiss GmbH to publish the type, object and result of the research and development work it carries out. Publications shall be agreed in advance with the client. The client shall not unreasonably withhold its consent to publication. If the client does not object to a publication (original text) submitted to it within four weeks following receipt of the complete documents, its consent shall be deemed to be granted. If any academic examination procedures (especially bachelor, master, doctoral and post-doctoral degrees) are affected by the project work, the client shall duly consider the legal obligations and legitimate interests of the parties involved in the examination procedures.

 

13. Termination

13.1 If no significant progress has been made within a considerable period of processing time, then each contracting party shall be entitled to terminate the contract with one months notice to the end of a calendar month. However, termination is excluded within the first six months from the beginning of the contract. No further termination rights apply.

13.2 Each contracting party shall be entitled to terminate the contract with immediate effect for good cause.

13.3 Following valid termination, fortiss GmbH shall provide the client with the research and development results that have been achieved up until expiry of the notice period within four weeks. The client shall reimburse fortiss GmbH any costs that have been incurred up until expiry of the notice period for termination. Personnel costs shall be reimbursed according to time spent. If the termination is due to a fault by one of the contracting parties, this shall not affect any damage compensation claims.

 

14. Miscellaneous

14.1 Ancillary agreements, amendments and supplements hereto must be made in writing.

14.2 The place of performance for services provided by fortiss GmbH and for the client's payments is Munich.

14.3 The laws of the Federal Republic of Germany apply, excluding the United Nations Convention on the International Sale of Goods (CISG).

14.4 In the event that individual or multiple provisions are or become wholly or partially invalid, the validity of the remaining provisions shall not be affected. The same shall apply in the event of an omission in the provisions.

 

Version dated 2018/11