I. Scope of the terms and conditions / conclusion of contract / implementation of orders
All work and services provided by FTA Forschungsgesellschaft für Textiltechnik Albstadt mbH (referred to below as FTA) in the fields of analyses and R&D (referred to below as the operations) will be subject to these terms and conditions. In addition supplies of goods will be subject to the FTA general terms of supply and payment in the applicable form. Any contrary terms and conditions applied by the customer are hereby expressly excluded.
Any changes, supplementary agreements or other contrary provisions with regard to the terms and conditions or the orders implemented by FTA will only apply if implemented in written form. This also applies to any changes to this clause.
All offers made by FTA are subject to confirmation. Contracts will not come into effect until the content of the contract has been confirmed in writing.
FTA will have the right to have contracts carried out by companies affiliated with FTA, and to transfer material and information provided by the customer for this purpose. Orders will only be placed with other third parties in consultation with the customer.
The services provided by FTA will be payable in accordance with the applicable rates or the prices indicated in the quotation or confirmation of order. Any additional expenditure, such as travel expenses or costs arising from delays for which FTA is not responsible, will be invoiced separately at the applicable rate.
Customers who fail to meet agreed deadlines will be responsible for any resulting costs. If any deadline which the customer is unable to meet is not cancelled by the customer within five (5) working days at the latest, the customer will be responsible for paying 50% of the agreed fee in addition to any other costs which may arise. This amount can be reduced or even waived if the customer is able to prove that − as a result of the failure to meet the deadline at short notice − FTA did not suffer any damage or suffered less damage than claimed.
III. Materials made available
The provision of material by the customer is implemented at the risk and cost of the customer. The customer must provide notification of any risks posed by such materials, in particular of a toxicological kind, and provide any applicable instructions for use.
FTA will have the right to analyse such materials in order to test their suitability for processing and to exclude or reduce any hazards to health or risk to machinery and other objects which could come into contact with the material.
In addition the customer must notify FTA of any existing industrial property rights with regard to these materials. The customer will indemnify FTA against any claims which may be made by third parties on the basis of industrial property rights.
FTA does not guarantee that it will be possible to implement the services commissioned with the material made available, or that the material will be suitable for use or return after the commissioned processing/analysis.
After the completion of the order any materials not consumed or samples derived from them will be stored for a further 30 days. After that FTA will have the right to dispose of them, if appropriate.
IV. Delay in performance and delivery
The delivery period will be arranged individually and indicated on the confirmation of order. If this is not the case the delivery period will be approximately 4 calendar weeks from the date of our confirmation of order. The delivery period will begin at the earliest with the date of order confirmation by FTA, but not before all the details of the order have been arranged, in particular relating to objects, documents, approvals, or releases to be provided by the customer, the receipt of an agreed advance payment or implementation of all other actions required on the part of the customer. If failure to meet a delivery date is the responsibility of FTA, FTA will only be in arrears of delivery after the customer has provided in writing a follow-up period of two calendar weeks and this period has expired fruitlessly.
The period for delivery or performance will be regarded as having been met if the concluding report or sample has been sent off by the expiry date, or if readiness for shipment has been notified. If the operations on the part of FTA are prevented by force majeure, the period for delivery or performance will automatically be extended by the relevant period, together with a reasonable lead time. Force majeure will be represented by circumstances which make performance on the part of FTA impossible or unreasonably difficult and includes delays in delivery on the part of suppliers, industrial disputes, actions by the authorities, lack of raw materials or energy, operational or transport breakdowns of all kinds etc. If the circumstances last for more than four months FTA will have the right to withdraw from the contract. At the request of the customer FTA must declare if it wishes to withdraw from the contract or provide the agreed service within a reasonable period to be specified by FTA.
All results created under the order are and remain the property of FTA. The customer will receive an irrevocable, non-exclusive right of use for the intended purpose to these results for itself and its affiliated companies. Such results are to be kept secret by the customer, unless they are generally known, were already known to the customer in advance, or become generally known through no fault of the customer.
Publication of the results, including in the form of quotations and references to FTA, must be agreed in advance with FTA.
If property rights arise, these will be the property of FTA and can be registered by FTA in its own name and for its own account. If appropriate the customer will make any necessary declarations and support FTA with such registrations. The commercial use of results for which property rights have been assigned will be subject to a licence fee. At the appropriate time the parties will agree on the amount of the fee.
Any information provided by the customer and identified as subject to non-disclosure, will be made known by FTA internally only to such persons and employees who require this information. The information will not be disclosed to third parties. The use of such information for the registration of property rights or in the results generated under the order will only be implemented in consultation with the customer.
There will be no obligation of non-disclosure if such information is generally known or becomes generally known without any breach of its obligations by FTA, if it was already known to FTA in advance, or is developed by FTA independently and without use of any information provided by the customer. Regardless of the above, the duty of non-disclosure will end at the latest five (5) years after the information has been made available.
FTA will only be liable for information and guarantees relating to performance or other declarations on the part of those acting on its behalf if such declarations have been confirmed in writing by FTA as binding. Any defects must be reported to FTA in writing without delay. No liability will be accepted if the defect is of minor importance to the interests of the customer, or is based on circumstances for which the customer is responsible. This applies in particular with regard to the material provided by the customer. FTA accepts no liability for the consequences of any modifications which are made by the customer or third parties either incorrectly or without the advance agreement of FTA. As a guarantee the customer will initially only be able to demand the free subsequent improvement of defective services. If no subsequent improvement is provided within a reasonable time, or if the attempt at improvement is unsuccessful, the customer can require the cancellation of the contract or a reduction in the agreed price.
As a rule liability will be based on the principles of service contract law. However, if success is guaranteed on the basis of the contractual agreement or the circumstances of the order, liability will be in terms of the principles of work and service contract law.
For damage FTA will only be liable – regardless of the legal basis –
a) in the case of wilful intent,
b) in the case of gross negligence on the part of the owners, bodies or senior employees of FTA,
c) in the case of culpable injury to life, limb or health,
d) in the case of defects which have been fraudulently concealed,
e) within the scope of a guarantee commitment,
f) if there is liability for injury to persons or property in the case of privately used objects.
In the case of a culpable breach of a cardinal contractual obligation FTA will also be liable in the event of gross negligence of non-senior employees and in the case of minor negligence. In the latter case liability will be limited to the typical damage which could reasonably have been foreseen for this type of contract. All further claims are excluded.
3. Information provided by the customer
The customer is liable for the correctness of the information provided, with particular reference to specifications, technical data, operating conditions and other information necessary for the implementation of the operations. FTA will therefore not be liable for damage incurred by the customer or third parties which results from incorrect information provided by the customer. The customer undertakes to indemnify FTA against any such claims made by third parties.
VIII. Retention of title
If transfer of ownership is agreed FTA will, until payment of all amounts due under the contract has been received, retain title to all objects and results to be supplied, with particular reference to samples, prototypes and reports.
IX. Invoicing and payment
Financial settlement will be implemented at the latest after the operations have been completed. Invoicing will be on the basis of the current rates. Invoice amounts are due without deduction on the issue of the invoice and will be payable within 15 days from the date of invoice.
Any payments received will always be deducted from the oldest invoice.
From the 16th day after the date of invoice or equivalent request for payment FTA will have the right, even without issuing a reminder, to charge interest at the level of 9% above the base rate of the European Central Bank. If after the conclusion of the contract there is a significant deterioration in the customer's financial situation, or if FTA only learns of such a previous deterioration after the conclusion of the contract, FTA will have the right at its own discretion to demand either payment in advance or security. If the customer fails to meet this requirement FTA will have the right, after the expiry of a reasonable follow-up period, to reject performance of the contract. The customer will have no right of setoff or retention in terms of counterclaims which are not accepted by FTA or have not been recognised by a court of law.
Payments to representatives or employees of FTA will only be valid against submission of a written right of collection.
X. Statutory limitation
All claims of the customer – regardless of legal basis – will become subject to statutory limitation after 12 months. The claims for damage specified in Section VII 2 a – d and f are subject to the applicable statutory periods. If FTA implements work on a structure and causes this structure to become defective the applicable statutory periods will also apply.
XI. Choice of law, place of fulfilment, place of jurisdiction
The legal relationship between the customer and FTA will be subject exclusively to the laws of the Federal Republic of Germany.
The place of fulfilment for the services of both contracting parties will be Albstadt.
Albstadt will be the sole place of jurisdiction if the customer is a business, legal entity under public law or public fund or has no general place of residence within Germany. However, FTA will also have the right to institute proceedings at the registered location of the customer.