1. Scope
1.1 The following General Terms and Conditions ("GTC") shall apply to all deliveries and services including consulting and development services as well as advice and information (hereinafter jointly referred to as "Service(s)") of der FEV Group GmbH, FEV Europe GmbH, FEV Consulting GmbH, FEV Norddeutschland GmbH, FEV Dauerlaufprüfzentrum GmbH, FEV eDLP GmbH, etamax space GmbH, EVA Fahrzeugtechnik GmbH, B&W Fahrzeugentwicklung GmbH, FEV Test Systems GmbH, FEV Vehicle GmbH, share2drive GmbH, EDL Rethschulte GmbH, FEV Creltec GmbH and FEV Asia GmbH (each individually "FEV") towards their customers (each individually "Customer"). These General Terms and Conditions shall also apply to future business relations.
1.2 These General Terms and Conditions shall not apply to consumers within the meaning of § 13 BGB (German Civil Code).
1.3 Any terms and conditions of the Customer conflicting with or deviating from these GTC shall not apply unless FEV has expressly agreed to their applicability in writing. Furthermore they shall not apply even if FEV, being aware of conflicting or deviating terms and conditions of Customer, does not separately object to them or if FEV provides the delivery and/or Service to the Customer without reservation.
2. Offers and Samples
2.1 Offers made by FEV are without engagement and non-binding unless they are expressly marked as binding or contain a specific term of acceptance.
2.2 Subsidiary agreements to the offers and changes to the contents of the offers by the Customer with respect to offers of FEV shall only be effective after confirmation by FEV. They shall only be included in the price stated in the offer if confirmed by FEV.
2.3 FEV reserves the proprietary and intellectual property rights to all information and documentation of any kind contained in or submitted with the offer ("Offer Documents"). The Offer Documents must be treated with confidentiality and may not be reproduced or made available to third parties in any form whatsoever without the express consent of FEV. At the request of FEV, the Offer Documents available at the Customer must be returned or destroyed. The provisions of this Section 2.3 shall apply mutatis mutandis to samples which FEV provides to the Customer.
3. Customer´s Obligation to Cooperate; Battery Disposal
3.1 The Customer shall undertake to provide FEV in due time and in full with all components, documentation, information and/or data required for the performance of the Service and determined on the basis of the performance framework. FEV shall not be obliged to check the components, documentation, information and/or data handed over to it before the start of the performance of the Services for correctness, completeness and freedom from defects.
3.2 In the absence of any other agreement, the Customer shall be responsible for the disposal of used vehicle and industrial batteries handed over to the Customer as part of the Services. Unless otherwise agreed, the Customer will dispose of the used vehicle and industrial batteries at its own expense to a treatment facility in accordance with the regulations of the German Battery Act.
4. Prices; Delivery; Terms of Payment; Offsetting and Retention
4.1 Unless otherwise agreed by the parties, deliveries shall be ex works ("EXW" Incoterms 2020) FEV's registered office. This shall also be the place of performance for the delivery and any subsequent performance as well as for the payment obligations.
4.2 The prices are, unless otherwise agreed, ex works in accordance with Section 4.1 net cash in EUR plus the applicable statutory value added tax and other (where applicable country-specific) taxes, excluding packaging, freight, insurance and customs. Unless otherwise agreed, FEV shall be entitled to reimbursement of expenses in addition to the agreed renumeration
4.3 The risk of accidental loss and accidental deterioration of the object of the delivery shall pass to the Customer at the latest upon handover. If the service requires acceptance, this shall be decisive for the passing of risk.
4.4 In the event that the Customer is in default of acceptance or culpably violates other obligations to cooperate, in particular those set forth in Section 3.1, FEV shall be entitled to claim damages arising to FEV, including any additional expenses incurred. FEV reserves the right to assert further claims or rights.
4.5 FEV shall be entitled to make partial deliveries and render partial Services as is customary in the trade if the partial delivery/performance is not contractually excluded, if the Customer is able to use the partial delivery/performance within the scope of the contractual purpose, if the performance of the remaining Service/delivery is ensured and if the Customer does not incur any considerable additional work or costs as a result of the partial delivery/performance (unless FEV declares its willingness to bear such costs). Complaints about partial Services/deliveries shall not release the Customer from the obligation to accept the remaining service/delivery in accordance with the contract.
4.6 The period allowed for payment shall be 30 days net after invoicing. The timeliness of payments of any kind shall be determined by FEV's receipt of payment. The costs of payment transactions shall be borne by the Customer.
4.7 FEV is entitled to initially set off payments against older debts of the Customer. If costs and interest have already been incurred, FEV shall be entitled to set off payments against the costs, then against the interest and finally against the main service.
4.8 The Customer shall have a right of retention only to the extent that such right of retention is based on the same contractual relationship as FEV's counterclaim and FEV's claims are undisputed, ready for decision or legally binding.
The Customer may only offset counterclaims if the counterclaims are undisputed, ready for decision or legally binding.
4.9 If the Customer threatens to become insolvent, suspends payments or if an application for insolvency is filed by the Customer or a third party, FEV shall be entitled to suspend the provision of services or to withhold the provision of services until the corresponding counter-performance is effected or the Customer has provided sufficient security. FEV shall be entitled to declare an existing residual debt due for payment in full. In addition, FEV shall have the right to withdraw from the contract.
5. Acceptance
5.1 As far as the service requires acceptance, the Customer shall be obliged to the acceptance of a service performed by FEV. The Customer may not refuse acceptance due to insignificant defects of the service. In this context, immaterial defects are in particular defects which do not or only immaterially restrict the usability of the service for the Customer. If FEV is entitled to render partial performances (Section 4.6), the Customer shall also be obliged to accept partial performances.
5.2 Implied acceptance shall be deemed to be the case if the Customer indicates to FEV that it condones the work as being essentially in conformity with the contract, in particular by using the work for purposes other than inspection and testing of the work. The statutory provisions of the law on contracts for work and services shall also apply accordingly to an agreed acceptance. If the Customer is in default of approval, this shall be equivalent to handover or acceptance. Furthermore, it shall be deemed equivalent to acceptance if the Customer does not accept the work within a reasonable period of time determined by FEV, despite being obliged to do so.
6. Reservation of Title
FEV reserves title to the goods or works it delivers until full payment of all claims arising from the underlying legal transaction with the Customer.
7. Processing Time
7.1 The processing time shall commence upon confirmation of the Customer's order by FEV, but not before the Customer has fully complied with its obligations to cooperate pursuant to Section 3.1 or made an agreed advance payment. The processing time shall be determined to the best of FEV's knowledge, taking into account any necessary scheduled cooperation of the Customer. Unless otherwise agreed, any dates quoted shall therefore be deemed non-binding.
7.2 In the event FEV realizes that the processing time is insufficient for the processing of the order, FEV shall notify the Customer of this fact and indicate the cause. In this case, FEV and Customer shall agree on a reasonable extension of the processing time. If the delay is unreasonable for the Customer and FEV itself is solely responsible for the delay, the Customer is entitled to terminate the contract.
8. Rights of Use and Intellectual Property Rights
8.1 FEV shall exercise due care and diligence customary in the industry to ensure that the service does not infringe any intellectual property rights of third parties in the country of the place of performance, but shall not conduct any intellectual property right searches in connection with the performance of the order. Different arrangements shall apply only if the performance of such search has been expressly agreed in writing. FEV shall therefore only warrant that the Service is free from third party intellectual property rights if and to the extent that a more extensive warranty of the freedom from third party intellectual property rights as well as an intellectual property right search required for this purpose has been expressly agreed.
8.2 Unless otherwise agreed, all intellectual property and related rights, such as copyrights, patents or other industrial property rights, arising in connection with the performance of the service shall remain with FEV. To the extent that such intellectual property created in the course of the performance is required for the contractual use of the service, the Customer shall receive a non-exclusive, non-sublicensable and non-transferable right to use such intellectual property of FEV to the extent necessary to use the service contractually owed by FEV, provided that the Customer duly fulfills its contractual obligations to FEV.
8.3 In the event that the Customer requires existing intellectual property at FEV for the use of the Service owed by FEV under the contract, FEV shall notify the Customer thereof and, at the request of the Customer, grant the Customer a non-exclusive, non-transferable and non-sublicensable right of use on reasonable terms.
8.4 If the use of the performance owed by FEV under the contract requires that confidential intellectual property of FEV is made available to third parties, the third parties shall be obligated to maintain confidentiality in advance. The Customer is obliged not to reverse engineer or dismantle Services of FEV that contain confidential intellectual property of FEV (prohibition of reverse engineering) and to impose a corresponding obligation on third parties in advance if the service is made available to third parties. The prohibition of reverse engineering shall also apply to all computer programs which are not handed over to the Customer in source code.
8.5 For software for which FEV has only a derived right of use and which is not open source software (third party software), the terms and conditions of use agreed between FEV and its licensor shall apply additionally and with priority as far as they concern the Customer (e.g. end user license agreement); FEV shall point this out to the Customer and shall make it available to him upon request.
8.6 Open source software shall be governed primarily by the terms and conditions of use to which the open source software is subject. FEV shall release or make available the source code to the Customer only to the extent required by the terms and conditions of use of the open source software. FEV shall inform the Customer of the existence and the terms and conditions of use of any open source software made available to the Customer and shall make the terms and conditions of use available to the Customer or, if required under the terms and conditions of use, transfer them to the Customer.
9. Claims for Defects
9.1 The rights of the Customer in the event of material defects and defects of title (including incorrect and short delivery as well as improper installation or faulty installation instructions) shall be governed by the statutory provisions, unless otherwise provided below.
9.2 FEV shall perform the Services under the contract on the basis of the respective recognized rules and the state of the art.
9.3 The Customer shall inspect the Services rendered by FEV without undue delay and notify FEV of any suspected defects without undue delay after becoming aware of it. If the Customer fails to conduct a proper inspection and/or report defects, FEV's liability for the defect not reported not reported properly shall be excluded according to the statutory provisions. The processing of late notifications of defects by FEV shall not constitute a waiver of the objection of the failure to notify defects in due time.
9.4 If it can be proven that the Service provided by FEV contains a defect already existing at the time of the passing of risk, FEV shall be obliged, at its option, to repair or replace the defective parts free of charge. If the Customer claims a defect which does not actually exist, the Customer shall bear the costs of the inspection.
9.5 The Customer shall grant FEV the necessary time and opportunity to carry out all modifications or replacement deliveries that FEV deems necessary. FEV shall be free to decide whether it shall carry out the repair at the place of use of FEV or at FEV's premises. Parts subject to complaint shall be returned to FEV upon request.
9.6 If a repair or new delivery fails, is impossible or is unreasonably delayed despite two attempts by FEV, the Customer may reduce the agreed remuneration or withdraw from the contract. In the event of an insignificant defect, however, there shall be no right of rescission.
9.7 Notwithstanding the above provisions and statutory exclusions of claims based on defects, FEV shall not be liable for a defect if and to the extent that
- the Customer has not immediately reported a defect that was recognizable at acceptance,
- the Customer does not use or treat the service in accordance with applicable statutory or official regulations or contractual agreements,
- FEV is no longer able to properly determine whether a defect exists due to circumstances for which the Customer is responsible, and/or
- the defect can be attributed to an execution instruction or to materials or parts delivered by the Customer, unless the defectiveness of the execution instruction or the materials or parts was intentionally or negligently not taken into account by FEV.
9.8 FEV shall not assume any liability for the proper functioning or freedom from defects of the products manufactured with or on the basis of the Services of FEV by the Customer or third parties, unless FEV has been informed about the use and conditions of use before accepting the order and the Customer has sufficiently tested the products. FEV shall not assume any liability according to §§ 478, 479 of the German Civil Code (BGB) if the Customer has treated or processed the goods; however, §§ 478, 479 of the German Civil Code shall also not apply insofar as their requirements are not met.
9.9 Specifications and references within the scope of FEV's Services to DIN or ISO standards, guidelines or other domestic or foreign quality standards as well as analyses provided or the description of physical properties of FEV's Services shall not constitute guarantees within the meaning of Section 276 para. 1 sentence 1 of the German Civil Code (BGB) unless otherwise agreed.
9.10 To the extent a service of FEV contains research and/or development work, FEV shall endeavor to achieve the goal required by the Customer. However, FEV shall not assume any further commitment, in particular for the achievement of the desired goal. Anything else shall apply only if agreed.
9.11 The Customer shall be entitled to claim damages or compensation for futile expenses due to defects only in accordance with Section 10 and shall be excluded in all other respects.
10. Liability
10.1 FEV shall only be liable for gross negligence and intent as well as for the violation of such duties for which is essential for the proper performance of the contract and the observance of which the Customer may regularly rely on ("Cardinal Obligation").
10.2 In the event of a slightly negligent violation of a Cardinal Obligation, the liability of FEV shall be limited to damages that are foreseeable at the time of conclusion of the contract and typical for the contract.
10.3 If the slightly negligent violation of a Cardinal Obligation by FEV results from the violation of the obligation to deliver goods free of defects, it shall be assumed that the foreseeable damage typical for the contract is not higher than the total value of the consideration as the maximum amount of the deficiency. FEV's liability shall therefore be limited to the total value of the consideration for the Service concerned.
10.4 FEV shall not be held liable for slightly negligent violations of contractual obligations which are not Cardinal Obligations.
10.5 To the extent the liability of FEV is limited or excluded, this shall also apply to the liability of employees, representatives and vicarious agents of FEV.
10.6 The aforementioned limitations or exclusions of liability shall not apply in the event of fraudulent concealment of defects, to the acceptance of a guarantee or a procurement risk, for liability under the German Product Liability Act (Produkthaftungsgesetz), for personal injury (injury to life, body or health) and for other mandatory liability. A change in the burden of proof to the detriment of the Customer is not associated with this.
10.7 The Customer may only rescind or terminate the contract due to a breach of duty which does not consist of a defect if FEV is responsible for the breach of duty. A free right of termination by the Customer (in particular pursuant to §§ 651, 649 German Civil Code [BGB]) shall be excluded with respect to such breaches of duty which do not consist of a defect. In all other respects the statutory requirements and legal consequences shall apply.
10.8 Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from defects of quality and defects of title shall be one year from delivery. If the Service requires acceptance, the warranty period shall begin at the time of acceptance approval and shall also be one year (notwithstanding § 634a para. 1 BGB). § 438 (1) No. 2 BGB, § 634a (1) No. 2 BGB and other special statutory limitations (in particular § 438 (1) No. 1, (3), § 479 BGB) shall remain unaffected. The above limitation periods shall also apply to contractual and non-contractual claims for damages of the Customer which are attributable to a defect, unless the application of the regular statutory limitation period pursuant to §§ 195, 199 BGB would lead to a shorter limitation period in an individual case. Claims for damages of the Customer due to intent, fraudulent intent or gross negligence and/or due to injury to life, body or health as well as under the Product Liability Act shall become statute-barred exclusively according to the statutory limitation periods. The statutory limitation periods shall also apply in case that FEV has fraudulently concealed a defect or has accepted a guarantee of quality (§§ 444, 639
BGB).
10.9. FEV shall not be liable to the extent that damages have been culpably caused by the Customer.
11. Confidentiality
The Customer shall keep all oral, written, electronic or visual information provided to the Customer in connection with the cooperation and which is marked as confidential or is otherwise recognizable as confidential, e.g. due to its content; this applies in particular to company and business secrets, confidential. The above provisions shall not apply to the extent that Information (i) is or becomes publicly known without this resulting from a violation of these confidentiality provisions; (ii) is already in the possession of the Customer at the time of its disclosure without any obligation of the Customer towards any person to keep such information confidential; (iii) becomes known to the Customer from a source other than FEV after its disclosure; and/or (iv) is independently developed by the Customer.
The Customer shall impose appropriate confidentiality obligations on his employees who come into contact with confidential information of FEV.
12. Performance of Services and Force Majeure
12.1 FEV is entitled to contract third parties (subcontractors) for the provision of the Services or parts of the Services, in particular also such companies which are affiliated with FEV within the meaning of § 15 et seq. AktG, without requiring the prior consent of the Customer. FEV shall remain the sole contractual partner of the Customer even in the event of a possible provision of Services by third parties or affiliated companies.
12.2 If incidents and circumstances, the occurrence of which is beyond FEV's control (such as natural disasters, epidemics/pandemics, war, industrial disputes, shortage of raw materials and energy, traffic and operational disruptions, fire and explosion damage, acts of government, such as export restrictions), prevent FEV from fulfilling its contractual obligations, FEV shall be released from its contractual obligations for the duration of the disruption and to the extent of its effects. In the event that these incidents last longer than 3 months, either party shall be entitled to withdraw from the contract.
13. Export Control
13.1 The performance of deliveries and Services by FEV is subject to the provision that there are no obstructions to the performance due to applicable national and international regulations, in particular export control regulations and embargoes or other sanctions.
13.2 The parties shall provide all information and documents required for export, transfer and import (e.g. end-use declarations). This shall also apply to the Customer in the event of a possible transfer of the deliveries in connection with an export, transfer or import.
13.3 Delays due to export inspections or approval procedures shall extend agreed deadlines, in particular delivery and performance deadlines, accordingly. If the required approvals are not granted, not granted within a reasonable period of time, not granted definitively or if the Customer does not provide the documents or information required for obtaining such approval within a reasonable period of time, FEV shall be entitled to rescind the contract in whole or in part. Claims of the Customer in this respect shall be excluded in the event of rescission.
13.4 In the event of export or transfer of the deliveries by the Customer and/or in the event that the Customer provides any materials, the Customer undertakes to comply with all German, European and all other applicable export control regulations as well as embargoes and other sanctions.
14. Applicable Law; Legal Venue
14.1 The contractual relationship between FEV and the Customer including these General Terms and Conditions shall be governed by the laws of the Federal Republic of Germany, excluding the national conflict of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG).
14.2 Unless otherwise agreed upon, the place of jurisdiction for all disputes arising directly or indirectly from or in connection with the contractual relationship between FEV and Customer shall be Aachen, Germany, unless a different exclusive jurisdiction exists. FEV shall, however, also be entitled to take legal action against the Customer at any other statutory place of jurisdiction.
15. Miscellaneous
15.1 The legal relationship between the Customer and FEV shall be governed solely by the contract, including these General Terms and Conditions. The contract shall reflect in full all agreements between FEV and the Customer at the time of conclusion of the contract.
15.2 Amendments and supplements to the contract must be made in writing in order to be deemed effective; the same applies to this requirement of written form. The same shall apply to collateral and additional agreements to the contract.
15.3 In the event that individual provisions of the contract are invalid, the remaining provisions shall remain legally binding. FEV and the Customer shall agree to replace the invalid provision by a valid provision that comes closest to the economic purpose of the invalid provision while adequately safeguarding the interests of both parties.
Status: 11/2020
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