NOTE: in case of discrepancies between the German and English version of these General Terms and Conditions, the German version (“Allgemeine Geschäftsbedingungen”) shall prevail.
These General Terms and Conditions apply to all engineering services provided by XORTION Engineering Engineering GmbH (hereinafter referred to “XORTION Engineering”). Customer’s terms and conditions shall only apply if this has been expressly agreed with Customer in writing.
1. XORTION Engineering carries out its engineering services with the utmost care, respecting the general quality standards and taking into account the needs of its customers. The object of the contract is the engineering service agreed in the respective purchase order / statement of work and its specific performance specification. XORTION Engineering provides the contractually agreed services on its own responsibility by professionally and methodically qualified employees.
2. If the performance specification of the engineering service contains omissions, errors, design clearances, ambiguities or lack of detail, XORTION Engineering is entitled to perform the engineering service at its own discretion.
3. Provisions applicable between XORTION Engineering and its Customer shall apply in the following order of precedence:
In the event of conflict between these provisions, the provisions mentioned first shall always take precedence over the provisions mentioned thereafter. Omissions shall be filled by the respective subordinated provisions. In the case of agreements of equal ranking, the more recent agreement shall take precedence over the later agreement.
1. All delivery dates stated by XORTION Engineering are only binding if this is expressly agreed. If, after the order has been placed, the purchaser requests changes or additions to the order or if other circumstances arise which make it impossible for XORTION Engineering to meet the delivery date, although XORTION Engineering is not responsible for these circumstances, the delivery date shall be postponed by a reasonable period of time.
2. If non-compliance with a binding delivery date is demonstrably due to mobilisation, war, riot, strike, pandemic or lockout or other circumstances for which XORTION Engineering is not responsible, the delivery period shall be extended accordingly. The customer may withdraw from the contract if it grants XORTION Engineering a reasonable grace period after expiry of the extended deadline. The withdrawal must be made in writing.
1. Each party may, during the term of the contract, request changes to the agreed scope of services in writing to the other party during the term of the contract. Upon receipt of an amendment, the beneficiary will review the amendment to see if and under what conditions this amendment is feasible (e.g. impact on dates and/or remuneration), and to notify the applicant in writing of an agreement or rejection, or make an offer of amendment and, if necessary, justify it
2. If an amendment by Customer requires a comprehensive review, this will be agreed separately. The verification effort for this can be charged by XORTION Engineering to Customer. The contractual adjustments to the agreed terms and engineering services required for a review and/or modification shall be specified in writing in an amending agreement.
3. Delivery times and performance obligations shall be extended by the calendar days on which XORTION Engineering examines amendments, prepares change offers, negotiates with Customer on change offers or, as a result of the request for modification, interrupts the realization of the project at the request of Customer, plus a reasonable restart period.
4. If no agreement is reached on an offer of amendment within a period of two weeks, or if, for technical, administrative or economic reasons, an offer corresponding to Customer's amendment cannot be made, XORTION Engineering shall continue the implementation of the contract on the original agreed terms.
5. Insofar as the circumstances underlying the contractual relationship undergo a substantial change that is not taken into account by the terms of the contract, both parties are entitled to demand an adaptation of the contract to the changed circumstances.
6. If it becomes apparent during the performance of the contract that the order can only be carried out with high additional costs, which were not recognizable at the beginning of the work and which neither XORTION Engineering nor Customer is responsible for, XORTION Engineering informs Customer immediately. Customer can demand the immediate termination of the work and terminate the contract. If Customer wishes to continue, he will inform XORTION Engineering in writing. Customer agrees to an increase in the remuneration and a corresponding postponement of the completion date.
The parties will deal with material and non-general matters of the other party with the usual confidentiality in business life. Further protection of particularly confidential information may be agreed separately at the request of one of the parties. The parties will only process or use personal data of the other party for contractually agreed purposes.
1. XORTION Engineering shall grant its customer the unlimited, irrevocable, non-exclusive right of use for any use within Customer's company in all work results produced for Customer in the course of the activity.
2. All concepts, architectures, designs, templates, source codes or software programs used by XORTION Engineering in the context of the engineering service, as well as the skills and methods provided by XORTION Engineering, shall remain with XORTION Engineering with the associated rights. XORTION Engineering grants its Customer a non-exclusive right of use insofar as this is necessary for the use of the results of the engineering service.
3. A right of use granted by XORTION Engineering can only be transferred to third parties with the prior written consent of XORTION Engineering. The granting of sub-licenses, the transfer of the results of work to third parties on a temporary basis or the making available in any other way also requires the prior written consent of XORTION Engineering.
1. The remuneration for XORTION Engineering is based on the written offers. It is calculated according to the time spent on the activity (remuneration according to effort) or agreed in writing as a fixed price. Unless otherwise agreed, XORTION Engineering is entitled to reimbursement of travel expenses and other expenses in addition to the remuneration. The remuneration is exclusive of the applicable statutory value added tax.
2. All claims become due after expiry of the payment term stated on the invoice and are payable without deductions. Customer is in default after the expiry of the payment deadline without a separate request for payment.
1. The provision of the agreed engineering services by XORTION Engineering requires the cooperation of Customer. The content and scope of the obligations to cooperate are specified in the offer.
2. Customer shall cooperate with XORTION Engineering and grant XORTION Engineering secure access to its business premises as well as access to other facilities, supplies, information or documents that XORTION Engineering may request to the appropriate extent in order to fulfil its contractual obligations. Customer commits to making own employees available to XORTION Engineering within reasonable extent for assistance and confirms that XORTION Engineering can make reasonable use of decision-makers in the project and other employees of Customer in order to enable XORTION Engineering to provide services.
3. If Customer does not fulfil one of his obligations to cooperate properly or immediately, the contractually agreed execution periods shall be extended. XORTION Engineering may charge for additional expenditure, in particular for the extended provision of staff or equipment. XORTION Engineering is entitled to set a reasonable deadline for Customer to meet his obligations. If obligations are not met by the expiry of the deadline, XORTION Engineering is entitled to terminate the contract.
1. Following regulations shall only apply in the case of contract for work and service.
2. In the case of works and services, acceptance takes place after assessment of the service provided. For clearly identifiable parts, XORTION Engineering may require partial acceptances. In this case, the total project performance is deemed to have been accepted with the last partial acceptance. Partial acceptances that have already taken place remain unaffected by the success of the final acceptance.
3. After acceptance, an acceptance certificate is created, which compares the services with the contractually agreed and shows existing deviations. In the event of deviations, it is agreed in the acceptance certificate how and within what time these deviations are to be eliminated by XORTION Engineering.
4. If acceptance cannot take place for reasons for which XORTION Engineering is not responsible, the part of the subject matter of the contract shall be deemed to have been accepted one week after the declaration of readiness for acceptance.
1. For works services, XORTION Engineering guarantees that the plant complies with the agreed service description. If this is not the case due to a defect, Customer is entitled to repair or a replacement. Customer can only request a reduction or a withdrawal if he has unsuccessfully set a period for performance or subsequent performance of at least three weeks or an attempt by XORTION Engineering to repair or replacement performance has failed at least three times. In the event of withdrawal, Customer must combine the above-mentioned deadline with an announcement of rejection. Further claims for damages can only be asserted within the limits of Section 10 (Liability) of these GTCs. Insignificant defects do not entitle Customer to terminate the contract.
2. The rights of Customer to a warranty shall become expire within 24 months of handover or acceptance. In the event of intent or gross negligence or injury to life, body or health, there shall be no reduction in the limitation period.
3. The claims for defects shall be waived if a service is altered by Customer or third parties, improperly installed or used, maintained, repaired or used in connection with third-party products, unless Customer proves that these circumstances are not the cause of the defect.
4. If the verification of a defect notification shows that there is no defect, the costs of the inspection or repair will be charged to Customer.
1. Except in cases of injury to life, body, health and under the Product Liability Act as well as due to other mandatory liability regulations, XORTION Engineering as a contractor is only liable in the event of intentional or grossly negligent cause of the damage.
2. Liability for simple negligence shall only apply in the event of a breach of essential contractual obligations. In this case, liability for non-contractual damages is excluded. Liability for this breach is limited to the damage typically foreseeable at the time of conclusion of the contract. If this amount is higher than the insured amount agreed by XORTION Engineering as a contractor within the framework of its liability insurance as the maximum amount, XORTION Engineering shall also be liable in this case only up to the maximum amount of its liability insurance. In other cases of simple negligence, XORTION Engineering is only liable within the scope of the liability insurance concluded by it. Customer as the client shall indemnify XORTION Engineering as a contractor from the claims that go beyond this sum of insurance. Any liability is excluded insofar as a defect or damage is based on an instruction or a special request of the client within the scope of the overhead line to which he is entitled.
3. Apart from that, claims for damages against XORTION Engineering are excluded, for whatever reason, as permitted by law, in particular indirect and consequential damages, e.g. business interruptions, lost profits or loss of production.
4. As an essential contractual obligation, Customer assumes that data can be backed up regularly at appropriate intervals, at least once a day, thereby ensuring that these data can be restored with reasonable effort. In the event of a data loss for which XORTION Engineering is responsible, XORTION Engineering is only liable for the recovery to the extent of the effort incurred if Customer has carried out the above data backups.
1. Unless otherwise agreed, Customer has at any time the right to terminate the contract until the completion of the work (Section 649 of the German Civil Code). If Customer terminates the contract, XORTION Engineering is entitled to the claims regulated in Section 649 / 2 of the German Civil Code (BGB). Without proof of the actual amount of the claim, XORTION Engineering is entitled to demand a lump sum equal to 20% of the agreed remuneration attributable to the non-fulfilled part of the work. The proof of higher claims remains unaffected. Customer is entitled to prove that no or much lower claims have arisen.
2. The right to terminate for cause remains unaffected.
1. The exclusive place of jurisdiction for all claims arising from or in connection with this contract is München, unless otherwise agreed in the offer. The law of the Federal Republic of Germany applies.
2. Should individual provisions be or become ineffective in whole or in part, or if a gap emerges, this shall not affect the validity of the remaining provisions. In such a case, XORTION Engineering and Customer are obliged to effectively replace an ineffective provision with the one closest to the economic purpose of the invalid provision.
3. Amendments and additions to contractual provisions must be made in writing in order to be effective and must be signed by a representative of each party. This also applies to all changes or the waiver of the written form requirement.
Grasbrunn, 01.03.2022
XORTION Engineering GmbH
