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General Terms and Conditions of Arnold NextG GmbH

A. General Terms of Service 

1. Scope

1.1. These General Terms and Conditions (hereinafter also referred to as “GTC”) of Arnold NextG GmbH (hereinafter also referred to as “Arnold”, “we”, “us”, “our”) shall apply exclusively to customers who are entrepreneurs within the meaning of Section 14 (1) of the German Civil Code (Bürgerliches Gesetzbuch, hereinafter “BGB”), i.e. natural or legal persons or partnerships with legal capacity who are acting in the exercise of their commercial or independent professional activity when concluding the transaction, and to customers who are legal entities under public law or special funds under public law.

1.2. These GTC shall apply to all contracts with the Customer regarding deliveries and services, in particular the

  • Delivery of goods (hereinafter referred to as “products”), especially: electronic control systems for vehicles, e.g., drive-by-wire systems, supplementary electronic components and subsystems, as well as vehicles retrofitted with electronic control systems (including platforms, prototypes, test vehicles), cf. below B
  • Provision of works, e.g., retrofitting vehicles (including platforms, prototypes, test vehicles), particularly installation and commissioning of electronic control systems, e.g., drive-by-wire systems, installation of supplementary electronic components and subsystems, maintenance and repair of retrofitted vehicles and electronic system components, cf. below C
  • Provision of other services, e.g., product training, installation and maintenance training for products, cf. below D 

These GTC shall apply to all customer orders. For all types of services governed in the special parts of these GTC (B – D), the general service conditions under this section A. shall apply in full.

1.3. These GTC shall apply exclusively in our relationship with the Customer. They shall also apply to all future business transactions as well as to all business contacts with the Customer, such as the commencement of contract negotiations or the initiation of a contract, even if these GTC are not again expressly agreed to or referred to. The validity of the Customer’s general order or purchase conditions is expressly contradicted.

1.4. Previous agreements and previous versions of our General Terms and Conditions are superseded by these GTC.

1.5. If, in any individual cases, obligations are created in relation to any person or commercial entity who are not intended to become parties to the contract, the limitations of liability in these GTC shall also apply to such persons, insofar as these GTC were also applied in relation to such third parties when the contractual obligation was established. This is particularly the case if the third parties have gained knowledge or already had knowledge of these GTC when the obligation was established.

1.6. The acceptance of the delivery of our services and deliveries by the Customer shall be deemed to be acceptance of the validity of these GTC.

2. Contract Formation

2.1. Unless otherwise agreed, our offers are - subject to confirmation - non-binding.

2.2. We shall only be bound by an order resulting from our offer only if it has been confirmed by us in text form by way of an order confirmation or if we begin with the performance of the order.

3. Scope of Delivery or Services, Delivery/Performance Deadlines

3.1. Our offer or order confirmation in text form shall determine the scope of our delivery or service (possibly based on a customer specifications document). Ancillary agreements and changes shall require our confirmation in text form. If our offer or order confirmation is based on information provided by the Customer (data, figures, illustrations, drawings, system requirements, etc.), our offer shall only be binding if such information was correct. If it becomes apparent after contract formation that the order cannot be performed in accordance with the Customer’s specifications, we shall be entitled to withdraw from the contact if and insofar as the Customer is not prepared to accept any replacement solution proposed by us and to bear any additional costs actually incurred.

3.2. We shall be entitled to provide partial performance in relation to all deliveries and services to a reasonable extent. 

3.3. We shall be entitled to use subcontractors to fulfil our contractual obligations.

3.4. As soon as we become aware of any risk of the Customer being unable to pay, we shall be entitled to provide deliveries and services only against advance payment or the provision of security in each case. Our right to withdraw from any individual contract already entered into shall remain unaffected if and insofar as the Customer fails to make an advance payment or provide security within a reasonable period.

3.5. Delivery and performance periods and dates provided are based on the best possible information, but are generally non-binding. The commencement of a delivery period and compliance with any agreed delivery deadline shall be subject to the Customer’s timely and proper performance of its duties of cooperation, the provision of all documents required and the payment of any agreed advance payments.

3.6. If it is agreed that the Customer pays in advance, delivery can only take place after we have received the full payment.

3.7. In the event of force majeure or other extraordinary circumstances for which we are not responsible, including but not limited to operational disruptions, material or energy shortages, transport delays, strikes, lawful lockouts, shortage of labour, energy or raw materials, difficulties with acquiring necessary official permits, pandemics or epidemics, government action, or failure of suppliers despite a congruent covering transaction, we shall not be in default. In such case, we shall be entitled to also withdraw from the contract if we are already in default. In case of any hindrance of a temporary nature, the deadlines for the provision of delivery and services shall be extended or shall be postponed by the period of such delay as well as a reasonable run-up period.

3.8. If, for our performance, we have concluded a congruent covering transaction (i.e., ordered required goods from suppliers prior to entering into contract with the customer), our delivery and performance obligations are subject to proper and timely self-supply. In case of self-supply failure due to reasons beyond our control, we shall not be in default. In this case we shall be entitled to withdraw from the contract. We will inform the customer immediately and refund any payments already made.

3.9. If we are contractually obliged to perform in advance, we may refuse any such performance incumbent upon us if it becomes apparent after entering the contract that our claim to consideration is endangered by the Customer’s inability to pay. This shall be the case in particular if the consideration due to us is endangered by the poor financial circumstances of the Customer or if other obstacles to performance are imminent.

4. Prices, costs

4.1. Our prices are net prices and, unless otherwise agreed in text form, deliveries and services to customers with a business seat in Germany are always “ex works” (EKW Incoterms 2020), and otherwise FCA (Incoterms 2020) for deliveries and services to other customers with their place of business outside Germany. When the invoice is issued, VAT shall be added at the applicable statutory rate.

4.2. If a performance period of more than four months is agreed between the time of confirmation of the order and the performance of the service, we shall be entitled to pass on to the customer any increases in costs incurred by us in the meantime as a result of price increases to a corresponding extent. The same shall apply if a performance period of less than four months was agreed, but the service can only be performed by us later than four months after the confirmation of the order for reasons for which the customer is responsible.

5. Payment conditions

5.1. Unless otherwise contractually agreed, our claim shall be due for payment upon delivery or full provision of service without any deduction. In the event of partial performance or deliveries, we may require proportional payment for each partial delivery/service.

5.2. In the event of agreed payment by installments, the entire outstanding balance shall immediately become due if the Customer is in default entirely or to a significant extent with two instalments, or if he is in default with an amount at least as high as one monthly instalment during a period of time that extends over more than two instalment payments.

5.3. For work or services to be provided by us, remuneration—also in the case of a prior cost estimate—shall generally be based on hourly rates according to the actual time spent, unless a lump-sum remuneration has been agreed. The time-recording units and the current hourly rates can be found in our offer and/or our order confirmation, or in our currently applicable price list if no hourly rates are stipulated in the offer or order confirmation.

5.4. Unless expressly agreed otherwise, the Customer shall not be entitled to make deductions.

5.5. If the customer has its registered office outside Germany and the contractual agreement with the Customer does not provide for delivery against advance payment, we are entitled, even without a separate agreement, to make our performance subject to the provision of a documentary credit (letter of credit) by a bank or savings bank authorised in the European Union in accordance with the currently applicable Uniform Customs and Practice for Documentary Credits (UCP 500) of the International Chamber of Commerce (ICC) in the amount of the gross performance price. If we do not request the provision of such a documentary credit and unless otherwise agreed in the contract, our claim shall become due upon receipt of the delivery. If we make our deliveries in definable partial sections, we shall in any case be entitled to make a corresponding part of the remuneration due for each partial section and, if applicable, to demand the provision of a documentary letter of credit for each partial section.

5.6. If the Customer is in default of payment, Customer shall compensate us for any damage caused by default, including interest at a rate of 9 percentage points above the base interest rate. If the Customer is in default with the payment of a due amount or partial amount for more than 14 days, if the Customer violates the obligations resulting from a retention of title or if the consideration due to us is endangered due to poor financial circumstances of the Customer, the entire outstanding balance of any and all claims shall become due for payment immediately.

5.7. Payment by bill of exchange or acceptance shall be permitted only after an express agreement on such and only on account of payment. Any additional costs incurred as a result of payment by bill of Exchange or acceptance shall be borne by the Customer.

5.8. Only those claims which are undisputed or confirmed by way of a final legal judgment may be set off against any amount we may claim under our right to remuneration. The same applies to the exercise of any right of retention. The Customer shall be entitled to exercise any right of retention only insofar as it is based on the same contractual relationship.

5.9. Any assignment of claims against us by the Customer shall require our prior approval, which we shall only refuse for good cause.

6. Liability

6.1. The Customer may claim damages only as follows:

6.1.1. For damages based on

- an intentional or grossly negligent breach of duty on our part, or 

- an intentional or grossly negligent breach of duty by one of our legal representatives, executives or agents (“Erfüllungsgehilfe” within the meaning of § 278 BGB)

which are not material contractual obligations (cardinal obligations) and are not main or ancillary obligations in connection with defects of our goods or services.

6.1.2. For damages which are based on the intentional or negligent breach of essential contractual obligations (cardinal obligations) on our part, on the part of one of our legal representatives, executives or agents (“Erfüllungsgehilfen” within the meaning of § 278 BGB). Material contractual obligations (cardinal obligations) within the meaning of the above subsections 6.1.1 and 6.1.2 are obligations whose fulfilment is essential for the proper execution of the contract and on whose compliance the customer regularly relies.

6.1..3. Furthermore, we shall be liable for damages due to negligent or intentional breach of duties in connection with defects in our goods or services (subsequent performance or subsidiary duties), and for damages which fall within the scope of protection of a guarantee (assurance) expressly given by us or a guarantee of quality or durability.

6.2. In the event of a breach of an essential contractual obligation involving simple negligence, liability shall be limited in amount to the damage typically to be expected and foreseeable for us at the time of conclusion of the contract when exercising due care.

6.3. Claims for damages by the customer in the event of a simple negligent breach of a material contractual obligation shall become time-barred one year after the statutory limitation period begins. This does not apply to any damage or injury in relation to life, personal injury or injury to health.

6.4. Claims for damages against us arising from mandatory statutory liability, for example under the Product Liability Act, as well as from injury in relation to life, personal injury or injury to health shall remain unaffected by the above provisions of this Section 6 and shall exist to the extent permitted by law within the statutory periods.

6.5. If third parties are commissioned or involved in the initiation or execution of the contractual relationship between the parties, the above-mentioned liability limitations (as well as the warranty limitations provided for in the respective special terms and conditions) shall also apply to the third parties. 

6.6. Any rights of a Customer under § 445a, § 445b and § 478 of the Civil Code (BGB) where the Customer or its subsequent Customers are in a supply chain shall remain unaffected in accordance with the following provisions:

6.6.1. The Customer shall bear the burden of proof to establish that the expenses for subsequent performance were necessary and that it could not have refused subsequent performance to its buyer in accordance with § 439 (4) BGB or could not have performed subsequent performance in a more cost effective manner.

6.6.2. Any claim under § 445a (1) BGB shall expire under § 445b (1) BGB within one year from our delivery to the Customer. These periods shall also apply even if a longer period would apply under Section 438 of the German Civil Code (BGB).

6.6.3 The limitation period for the Customer's claims against us based on a defect in a newly-manufactured item, as defined in §§ 437 and 445a (1) BGB, shall expire at the earliest two months after the date on which the Customer has satisfied the claims of its buyer, provided that the claims had not yet expired in the relationship between the Customer and its buyer. This suspension of expiry shall end at the latest five years after the date on which we have delivered the goods to the Customer.

6.7. Claims in accordance with § 327u BGB remain unaffected by the above provisions and exist to the statutory extent within statutory periods.

7. Confidentiality

Unless a separate confidentiality agreement has been concluded with the customer in an individual case, the following provisions shall apply:

7.1. The Customer undertakes, during the term of the contract, to keep secret all information which becomes accessible to him in connection with the contract and which is designated as confidential or which is recognisable as being a business or trade secret due to other circumstances (“Confidential Information”), and further undertakes not to record or pass on any such Confidential Information to any to third party or exploit such information in any way, unless this is expressly approved in writing beforehand or required to achieve the purpose of the contract. This confidentiality obligation shall remain in force for a further five years after the complete performance or ending of the related order.

7.2. The Customer´s obligations under 7.1 shall also apply to business secrets within the meaning of § 2 Clause 1 of the German Business Secrets Act (Geschäftsgeheimnisgesetz, “GeschGehG”)

7.3. The Customer undertakes to protect business secrets within the meaning of § 2 No. 1 GeschGehG the same way as other Confidential Information from being obtained by third parties by means of confidentiality measures that are appropriate under the circumstances. The secrecy measures shall at least correspond to the level of care customary in the trade as well as the level of protection that the Customer applies to its own trade secrets of the same category.

7.4. The above shall not apply to any information which,

-  was already known to the Customer before the start of the contract negotiations or which are communicated by third parties as non-confidential, provided that these do not violate confidentiality obligations on their part,

-  the Customer has developed independently,

- is or becomes publicly known through no fault or action of the Customer , or

-  which must be disclosed due to legal obligations or orders by a court or a public authority. 

In the last situation the Customer shall notify us without undue delay before any disclosure. If the Customer claims one of the above exceptions to be applicable, the Customer shall bear the burden of proof in this respect. Further obligations in relation to confidentiality existing at law shall remain unaffected hereby.

7.5. The Customer shall not be entitled to obtain trade secrets or other Confidential Information by observing, examining, dismantling or testing an item or object within the meaning of Section 3 (1) GeschGehG ("Reverse Engineering"), unless the item or object has been made publicly available or mandatory legal standards permit such reverse engineering.

8. Miscellaneous: Place of Performance, Place of Jurisdiction, Contractual Language, Severability Clause, Applicable Law

8.1. Upon conclusion of the contract, the Customer shall provide us immediately with the valid VAT identification number issued to him by a Member State of the European Union. The Customer is also obliged to inform us at any time of any changes to the VAT identification number. Should we incur any damage due to a missing, incorrect or incomplete notification of the VAT identification number by the Customer, in particular due to a resulting loss of tax exemption for intra-Community deliveries in accordance with §§ 4 no. 1 lit. b), 6a of the German sales tax law (UStG), the Customer shall be obliged to compensate us. The foregoing obligation shall not apply if there is no culpable breach of duty by the Customer.

8.2. Place of Performance and exclusive place of jurisdiction for all disputes arising out of or in connection with the contractual relationship between the parties shall be Pfronstetten-Aichelau, Baden-Württemberg, Germany, insofar as the Customer is a merchant, a legal entity under public law or a special fund under public law or the Customer does not have a general place of jurisdiction in the Federal Republic of Germany or relocates its place of jurisdiction abroad. Notwithstanding the above, we shall be entitled to commence legal proceedings in relation to the assertion of any claim against the Customer at its general place of jurisdiction.

8.3. If the Customer does not have a general place of jurisdiction inside the EU or the EEA or relocates its place of jurisdiction from inside the EU or the EEA to outside the EU or EEA, the following shall apply instead of the above clause 8.2:

All disputes arising out of or in connection with contracts to which these GTC apply or any disputes concerning the validity of these GTC shall be finally settled in accordance with the Arbitration Rules of the German Institution of Arbitration (DIS), excluding recourse to the ordinary courts of law. The arbitration tribunal shall consist of three arbitrators. The place of arbitration shall be Stuttgart, Baden-Württemberg, Germany. The language of the proceedings shall be German.

8.4. A merchant is any entrepreneur who is registered in the commercial register or who operates a commercial business and requires a business operation organized in a commercial manner. The customer has their general place of jurisdiction abroad if their place of business is located abroad.

8.5. The mother language of the responsible persons in our company is not English, neither is English the mother language of most of our Customers. And these GTC are drafted according to German law. Therefore the meaning of any chosen English term shall be interpreted by translating such terms into German and the German text of such translation or the translated German term and the meaning of the term or section in the German version is authoritative according to the German legal understanding.

8.6. If any provision of these GTC or any provision within the framework of other agreements is or becomes invalid, this shall not affect the effectiveness of any other provisions or agreements.

8.7. German law shall apply to any contractual and other legal relationships with our Customer to the exclusion of the UN Convention of Contracts for the International Sale of Goods (CISG).satzreferenten zu benennen oder den Schulungstermin in Abstimmung mit dem Kunden auf einen Ausweichtermin zu verlegen.

 

B. Special terms and conditions for the delivery of goods (Sale)

1. Scope of application

The following special terms and conditions for the delivery of goods shall - in addition to the general terms and conditions under section A. – apply for all contracts with the customer concerning the sale and delivery of one or more auf our products (hereinafter also: “subject of purchase”, “good”, “item”). 

Under such contracts we owe the transfer of title and the provision of the subject of purchase to the customer.

2. Special provisions concerning scope of performance

2.1. Our deliveries are free of defects if they comply with the agreed requirements with regard to the quality and use as well as the agreements with regard to any accessories or any instructions. 

2.2. We are not obligated, in relation to our customer, to provide updates within the meaning of Section 327f of the German Civil Code (BGB) or to inform about such updates.

3. Transfer of risk, shipping costs

In case of deliveries to customers with their registered office in Germany, delivery is always “ex works” (EXW Incoterms 2020); for deliveries to other customers with their place of business outside Germany, always FCA (Incoterms 2020).

4. Retention of title

4.1. We reserve title to all the goods delivered by us until such time as payment is rendered in full in relation to all our current and future claims arising from the agreed contract and other ongoing business transactions (secured claims).

4.2. Goods subject to a retention of title shall not be pledged to any third party or assigned as security until all secured claims have been paid in full. The Customer must inform us without undue delay in written form if and to the extent that any third party accesses goods belonging to us.

4.3. If the Customer acts in breach of contract, including but not limited to in case of any non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or demand the return of the goods on the basis of our retention of title. Any demand for the return of goods shall not in itself constitute a declaration of withdrawal from the contract; we are entitled to demand a return of goods and to continue to reserve our right to withdraw from the contact. If the Customer fails to pay the purchase price due, we may exercise these rights only if we have set a further reasonable deadline by which payment must be made or, if such an additional deadline is not required by law.

4.4. The Customer shall be entitled to resell and/or process the goods in the ordinary course of business subject to our retention of title. In such case the following provisions shall also apply:

4.4.1. Any retention of title shall cover the full value of the goods resulting from processing, mixing or combining of our goods with other goods, whereby we shall be deemed the manufacturer. If in any processing, mixing or connection with other goods, a third party retains its retention of title, we shall then acquire a co-ownership in proportion to the invoice value of the processed, mixed or combined goods (“resulting product”). In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title by us.

4.4.2. The Customer hereby assigns to us by way of security any claims against third parties arising from the resale of the goods or the item, in whole or to the amount of our possible co-ownership share in accordance with the above provision. We hereby accept this assignment. The obligations of the Customer as set out in this Section 4 above shall also apply with regard to the assigned claims.

4.4.3. In addition to us, the Customer shall remain authorised to collect the claim. We undertake not to collect a claim provided that the Customer meets its payment obligations towards us, is not in default in relation to any payment, no application has been made for the commencement of insolvency proceedings and there is no other deficiency in terms of the Customer’s ability to pay. In the event of any of the above, we may require the Customer to disclose to us any assigned claim and the details of the respective debtor, provides all other details necessary for the collection and all related documentation and notifies the debtor (third party) of the respective assignment.

4.4.4 If the realisable value of any security exceeds our claim by more than 10%, we shall, at our discretion, release security at the request of the Customer.

4.5. The Customer must treat the reserved goods with diligent care. At our request, the Customer must adequately insure the reserved goods at replacement value against fire, water damage and theft at its own expense. Insofar as any maintenance or inspection work becomes necessary, the Customer shall carry out such at its own expense and in good time.

4.6. If the effectiveness of this retention of title depends upon its due registration, e.g. in one or more public registers in the Customer’s country, we shall be entitled and authorized by the Customer to effect such registration at the Customer’s expense. The Customer shall be obliged to provide at no charge all the support necessary for such registration.

5. Warranty and General Liability

5.1. The limitation period for claims based on defect in our goods (sing.: “item”) shall be one year from the date of statutory commencement of the limitation period. After the expiry of this year, we may refuse to undertake any subsequent performance without the Customer being entitled to claim a reduction in price, withdraw from the contract or claim damages as a result. This reduction of the statutory limitation period shall not apply to claims for damages other than those based on refused subsequent performance and shall generally not apply to claims based on a fraudulent concealment of any defect and to recourse claims according to section (§) 445a BGB; the statutory limitation periods shall apply to such claims.

5.2. For the purpose of determining whether an item is free of defects at the time of transfer of risk, a concluded quality agreement shall prevail over the objective requirements of the item within the meaning of § 434 (3) BGB.

5.3. An accepted intended use of the goods within the meaning of § 434 (2) no. 2 BGB, shall be subject to our comprehensive information by the Customer in writing in regard to such intended use prior to conclusion of the contract, as well as our specifically declared consent.

5.4. Goods delivered by us shall be deemed to meet the objective requirements of the usual quality with regard to the durability of the item in accordance with § 434 (3) s. 1 no. 2, s. 2 BGB, if at the time of the transfer of risk the item is capable of retaining its required functions and performance under normal use.

5.5. Any claim of the Customer due to defects of the goods or services provided by us shall be subject to the following provisions:

5.5.1. If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery). The right to refuse the chosen type of subsequent performance under the statutory conditions remains unaffected.

5.5.2. We are entitled to make the subsequent performance that we owe dependent on the customer paying the purchase price due. However, the customer is entitled to retain a reasonable part of the purchase price in proportion to the defect. 

5.5.3. The Customer must give us the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a defect, we are entitled to make a replacement delivery dependent on the customer returning the defective item and any use made of it to us step by step in accordance with §§ 346 to 348 BGB. There is no obligation to take back the replaced item.

5.5.4. We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular any transport, travel, labour and material costs, provided that the alleged defect actually exists. 

5.5.5. If the customer has incorporated the defective item into another item or attached it to another item, in accordance with its nature and intended purpose, after the defect became apparent, we are not obliged to reimburse the customer for the necessary expenses for removing the defective item and installing or attaching the repaired or delivered defect-free item.

5.5.6. If the customer has incorporated the defective item into another item or attached it to another item, in accordance with its nature and intended purpose, before the defect became apparent, we are only obliged—within the scope of subsequent performance—to reimburse the customer for the necessary expenses for removing the defective item and installing or attaching the repaired or delivered defect-free item if the customer has first given us the opportunity to carry out these actions ourselves within a reasonable period.

5.5.7. The customer shall bear the costs of rectification or subsequent performance arising from the fact that the purchased item has, after delivery, been transported to a location other than the customer’s place of business.

5.5.8. In the event that any claim for rectification of a defect by the Customer proves to be unjustified, we shall be entitled to claim reimbursement from the Customer of any costs incurred.

5.6. If the Customer is a merchant within the meaning of the Germen Commercial Code (HGB), the following shall also apply:

The Customer’s claims for defects, in particular the claims for subsequent performance, withdrawal from the contract, reduction of the purchase price and damages, require that the Customer has fulfilled its statutory obligations to examine the goods and give notice of defects (§§ 377, 381 HGB). If a defect becomes apparent during the inspection or later, we must be notified of this in writing without delay. The notification shall be deemed to be made without delay if it is made within 10 days of discovery of the defect; timely dispatch of the notification shall suffice to meet the deadline. Irrespective of this obligation to inspect and give notice of defects, the Customer shall notify us in writing of obvious defects (including incorrect and short deliveries) within fourteen days of delivery; timely dispatch of the notification shall also suffice to meet the deadline. If the Customer fails to duly inspect the goods and/or notify us of defects, our liability for such defect not notified to us shall be excluded. This shall not apply if we have fraudulently concealed the defect.

5.7. Our general liability is determined in accordance with Section A.6.

 

C. Special terms and conditions for the provision of works

1. Scope

These special terms and conditions for the provision of works apply to all contracts for retrofitting vehicles (including platforms, prototypes, and test vehicles), especially installation and commissioning of electronic control systems (e.g., drive-by-wire), installation of additional electronic components and subsystems, maintenance, and repair of converted vehicles and electronic system components.

The subject of a work may also be the adaptation of software contained in our products to specific customer requirements, as well as hardware modifications. These works are also subject to these special terms and conditions for the provision of works.

These special terms and conditions for the provision of works apply in addition to the General Terms of Service (Section A) 

2. Special provisions on the scope of our services

When producing the contracted work, we are entitled to conduct test and transfer drives 

3. Extended lien (“Pfandrecht”)

3.1. We are entitled to a contractual lien (“Pfandrecht”) on the items which we have obtained possession of on the basis of the contract for work due to our claim arising from a concluded contract for work.

3.2. The contractual lien may also be asserted for claims arising from work carried out earlier, deliveries of spare parts and other services, provided that they are related to the subject matter of the order. The contractual lien shall only apply to other claims arising from the business relationship provided that these are undisputed or a legally binding title exists and the contractual item belongs to the customer.

4. Retention of title

To the extent that installed accessories, spare parts, or units do not become integral parts of the subject of the order, we retain ownership until full payment. 

5. Change Request Management

5.1. We may – either at the customer's request or at our own request – agree with the customer on changes to the works. Such agreements should be documented and signed by both parties. Insofar as no agreements are made regarding remuneration or other contractual provisions, particularly schedules relating to the agreed changes, the changes must be carried out within the framework of the contractual provisions agreed upon up to that point.

5.2. If no agreement can be reached with the customer regarding the changes requested by us or by the customer, the following applies:

The customer is entitled to request changes from us until acceptance. Change requests must be submitted to us in writing. We will review the change request. We will accept change requests made by the customer provided that they are not unreasonable for us in terms of our operational capabilities. Within 14 days of receipt of the change request, we will inform the customer in text form whether

  • the change request is accepted and will be carried out under the existing terms of the contract,
  • the change request affects contractual provisions, e.g., price, execution deadlines, etc.; in this case, we will inform the customer under which conditions the change can be carried out. The change will only be made if the customer accepts the change on the terms communicated by us within 14 days of receiving such notification,
  • the review of the change request for feasibility is extensive; in this case, we may make the review dependent on reimbursement by the customer for the review effort. In such a case, we are obliged to inform the customer in writing of the expected time and costs for the review. The review order shall only be deemed issued once the customer has commissioned us in writing to conduct the review,
  • the change request is rejected.

If we do not respond to the change request within 14 days of receipt, the change request shall be deemed rejected.

When performing the services, we observe generally accepted testing methods as well as applicable legal regulations.

6. Duties to cooperate

6.1. The Customer shall – if it is necessary according to the type of work to be performed – cooperate in the development and creation of the work to the extent necessary and inform us in good time of the requirements to be complied with by him due to legal or operational regulations. If work cannot be carried out on our premises, the customer shall provide us or our employees with the necessary work equipment (e.g. suitable premises, workstations, monitors, documentation tools, etc.), electricity and telecommunications lines at its own expense for the duration of the work.

6.2. The duty to cooperate also includes making available all relevant customer information, systems, and other items relevant to the project (e.g., Dbc-files/K-matrix/3D models, etc.)

6.3. Any further obligations of the customer to cooperate may arise from any agreements made between the contracting parties.

7. Acceptance

The work shall be handed over after completion. If handover is excluded due to the nature of the work, notification of completion shall be issued. After completion and handover or – if handover is excluded due to the nature of the work – after notification of completion, the work shall be accepted. The customer shall accept the completed work within the agreed period, otherwise within a reasonable period, but at the latest within a period of two weeks after handover or – if handover is excluded due to the nature of the work – after completion. The period begins with our notification to the customer that the work has been completed. The work shall be deemed to have been accepted upon expiry of the agreed period for acceptance if the customer neither declares acceptance in writing or text form (e.g. by e-mail to the following address: info@arnoldnextg.de) nor informs us in text or written form which defects still need to be remedied. We shall draw the customer’s attention to this legal consequence when notifying him of the completion of the work or at handover.

In case of delay in acceptance, we may charge the locally customary storage fees. The subject of the order may be stored elsewhere at our discretion. Costs and risks of storage shall be borne by the customer.

8. Warranty

8.1. We warrant (“gewährleisten”) that the work to be provided is free of material defects, unless the defect is insignificant. The Customer shall notify us of any insignificant defects; these will be remedied by us during the next repair work.

8.2. Any claim of the Customer for subsequent performance due to defects of work shall be subject to the following provisions:

  • If the delivered work is defective, we may initially choose whether we provide subsequent performance by remedying the defect (rectification) or by supplying a defect-free item (replacement delivery). The right to refuse the chosen type of subsequent performance under the conditions set down by statutory law shall not be affected hereby.
  • The Customer shall provide us with reasonable opportunity and time for any subsequent performance and in particular shall provide us with the work claimed to be defective for testing purposes.
  • We are entitled to carry out the rectification of defects on the Customer’s premises. We fulfill our obligation to remedy defects also by providing updates equipped with an automatic installation routine on a commercially available data carrier, online via remote maintenance, or as a download from a website, and offering the customer telephone support to resolve any installation problems that may arise.
  • We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs, provided that the alleged defect actually exists. In the event that any claim for rectification of a defect by the Customer proves to be unjustified, we shall be entitled to claim reimbursement from the Customer for any resulting costs.
  • The following applies to the claim for subsequent performance due to a defect in the work performance provided by us: If we are unable to remedy the defect or provide a defect-free replacement, we will offer the customer workarounds. Insofar as these are reasonable for the customer, the workarounds shall be regarded as subsequent performance. Workarounds are temporary solutions to bridge a defect or malfunction in software, in particular without modifying the source code.
  • Where necessary, the user documentation will also be updated as part of the rectification.

8.3. The limitation period for claims due to defects in our work shall be one year from the statutory commencement of the limitation period. After the expiry of this year, we may refuse to undertake any subsequent performance without the Customer being entitled to claim a reduction in price, withdraw from the contract or claim damages as a result. This reduction of the statutory limitation period shall not apply to claims for damages other than those based on refused subsequent performance and shall generally not apply to claims based on a fraudulent concealment of any defect.

8.4. Our general liability is subject to the provisions in A.6

9. Rights to results

9.1. All rights to software adaptations and other work/service results arising from work services shall remain solely with us. Such adaptations and results may be made available to other customers at our sole discretion.

9.2. The customer is granted, upon full payment, only a non-exclusive, perpetual, non-transferable right to use the adapted software and hardware within the scope of the product produced delivered to order.

9.3. No further rights of use or exploitation of the work are granted to the customer.

 

D. Special terms and conditions for the provision of training services

1 Scope of application

These special terms and conditions for the provision of training services apply to all contracts for the execution of trainings (e.g. product trainings, installation and maintenance trainings). These special terms and conditions for the provision of training services supplement the General Terms and Conditions of Service under Section A.

2. Place of Performance

2.1. Unless otherwise agreed in the order, trainings are conducted on the premises of the respective customer. The customer is obliged to provide suitable rooms and presentation equipment for the execution of the training.

2.2. If agreed in the order that the trainings shall take place on our premises, the trainings will be conducted at our facility in D-72539 Pfronstetten-Aichelau.

2.3. Expenses and travel costs of our instructors are generally included in the total price agreed in the order. If the order specifies separate reimbursement for travel and accommodation expenses, reimbursement by the customer shall be made upon submission of copies of the receipts and deduction of any input VAT amounts contained therein. Current travel and expense rates can be found in our offer or order confirmation. If no rates are specified there, please refer to our most current price list for the valid rates.

3. Scope of Training

Depending on the type of training, the training covers the teaching of the technical fundamentals of the products as well as knowledge about their installation, maintenance, and repair. The specific content of the training is based on the respective order.

4. Participants in a Training

4.1. The maximum number of participants in a training is limited to the number of persons specified in the order agreement, excluding the training personnel.

4.2. Training is provided only to the customer and the customer’s employees. A prerequisite for participation is a technical qualification of the participant corresponding to the training content. Participation of external individuals in a training is only possible by prior written agreement between the customer and us.

5. Termination, Rescheduling of a Training

5.1. A contract for the execution of a training can only be terminated for good cause. Termination must be in writing.

5.2. For the training, we will provide the instructor named in the order from our company or an external instructor commissioned by us. If, for reasons for which we are not responsible, an instructor is unavailable for the agreed training date, we are entitled to designate a suitable replacement instructor from our company or another suitable external replacement instructor, or to reschedule the training date in coordination with the customer to an alternative date.