MBtech Services

General Marketing Conditions of MBtech Group GmbH & Co. KGaA

MBtech Group GmbH & Co. KGaA – hereinafter "MBtech" – is a principal supplier of development and consulting services across the entire automotive value chain, from detail specification, design, calculation and testing through to series maturity for components, systems, modules and vehicles.

Clause 1 General, area of application

These general marketing conditions of MBtech (German: AVB) apply exclusively: conflicting conditions or conditions that in any way deviate from these marketing conditions of MBtech are not recognised by MBtech, unless MBtech has otherwise expressly approved their validity in writing. These general marketing conditions of MBtech shall continue to apply if MBtech unreservedly renders the requested services in view of conflicting or deviating general terms and conditions of business on the part of the customer.
All agreements between MBtech and the customer to be set forth in this contract must be in writing; there are no verbal subsidiary agreements.
These general marketing conditions of MBtech apply solely to the business, legal entity of public law and asset subject to public law, pursuant to Art. 310 par. 1 German Civil Code [BGB].
In the event of an ongoing business relationship, these general marketing conditions of MBtech shall also apply to all future transactions involving the customer concerned.
These general marketing conditions also apply to subsidiaries of MBtech, provided subsidiaries deem these applicable.

Clause 2 Quotation, quotation documentation

Quotations supplied by MBtech are non-binding unless otherwise specified in the order confirmation.
MBtech retains ownership and copyright of all figures, drawings, calculations and other documentation. This also applies to all such written documentation marked "confidential". The customer must receive the express written consent of MBtech before passing any such documentation or materials to third parties.

Clause 3 Scope of service

The type and scope of services to be rendered by MBtech are detailed in MBtech's quotation. The quotation is compiled by MBtech on the basis of functional and technical specifications of the product/order provided by the customer. These specifications must be complete and accurate.
If, with the customer's consent, MBtech assumes the deliverables of a third-party contractor as the basis or component of its services, MBtech shall be entitled to put these towards its provision of services without a corresponding inspection, unless the customer expressly instructs MBtech in writing to carry out such an inspection.
MBtech shall render all services on the basis of the relevant applicable recognised codes of practice and with due care and diligence. Even with the bestavailable technology, however, it is generally not always possible to detect every fault or abnormality in a product/system under all application conditions. MBtech therefore assumes responsibility for the proper completion and documentation of the services agreed upon with the customer, but makes no guarantee that, in doing so, MBtech can or will detect every product/system fault or abnormality. If, at any stage during the contractual term and warranty period, product or system faults or abnormalities are or become known to the client, MBtech must be immediately notified of these in writing.
Should additional service requirements or change requests warrant modifications to the existing scope of service, these must be confirmed by MBtech in writing with the projected additional charges specified, and shall be billed separately.
MBtech is hereby authorised to employ the services of third parties for order completion.

Clause 4 Customer cooperation

Responsibility for the provision of documentation, hardware and software, and all other assets required to render the services in question, as well as for the transport of test specimens to and from the facility, resides with the customer. The scheduling of such activity must be coordinated with MBtech. If test specimens, documentation, hardware and software or other necessary assets are not collected despite a request to do so by MBtech, the return dispatch of these items shall be arranged, and billed to the customer.
The scope and quality of the services rendered by MBtech are largely contingent upon the scope and quality of the cooperation extended by the customer and, where applicable, product manufacturer and/or user. The customer is therefore expected to ensure its and its vicarious agents' full and timely cooperation with MBtech at no charge.
The customer shall incur all costs for additional outlay if MBtech is forced to repeat or delay work owing to late submission of or inaccurate or incomplete specifications or other substandard activity on the part of the customer. If an agreement governing a binding fixed rate or price limit has been concluded, MBtech shall also be entitled to bill for any such additional outlay.
MBtech shall not be liable for claims or costs incurred as a result of incomplete or substandard preliminary work or incomplete work rendered by the customer or, if applicable, product manufacturer and/or user. If any such preliminary work is not rendered as per the existing schedule, the terms agreed shall be lengthened accordingly.
The customer must inform MBtech without delay of any claims or losses for which MBtech can be held liable and, if so requested, the handling of the issue is to be surrendered to MBtech itself or to a third party of MBtech's choice.

Clause 5 Prices, terms of payment, advance payments

MBtech reserves the right to modify its price structure accordingly and within reason if, after contract conclusion, cost reductions or increases occur, particularly as a result of wage agreements or changes in materials prices. MBtech shall provide appropriate evidence to the customer upon request.
Prices specified by MBtech do not include VAT. VAT at the applicable rate shall be indicated separately on the invoice.
The deduction of a discount must be specifically agreed in writing.
Unless otherwise agreed in writing, the net price (without deduction) is payable within 14 days of receipt of invoice. Payment terms are deemed to have been met if MBtech has the sum at its free disposal within this term. Statutory regulations shall apply to the consequences of non-payment.
MBtech shall be entitled to demand advance payment, at an appropriate rate, for legitimate reasons and in due consideration of the customer's interests.
The customer shall be entitled to offset rights only if its counter claims are established as legally valid, undisputed or recognised by MBtech in writing. Furthermore, the customer shall be entitled to exercise its right of retention insofar as its counterclaim is based on the same contractual relationship.

Clause 6 Acceptance

If the manufacture of a product/work is the basis for the contract, the services agreed upon must be accepted in writing after deliverables have been transferred to the customer by MBtech.
If the customer fails to accept these services following transfer of deliverables for any reason other than deficiency or incompleteness, or for any other legal reason, the services shall be deemed to have been accepted at the latest 2 weeks after transfer.

Clause 7 Cross-border services

Should MBtech render services on behalf of the customer in countries outside of the European Union, the customer must substantiate its entrepreneurial status) by way of certification from the relevant authorities of the respective state or by way of a valid excerpt from the commercial register. If such evidence is not provided, the customer shall be liable to pay the applicable rate of VAT for services rendered within the Federal Republic of Germany. Such payment must be made immediately.
Should MBtech render services on behalf of the customer in any other European Union member state (i.e. not in Germany), the customer must disclose to MBtech its VAT identification number before the services are rendered. The customer must inform MBtech of any change to its tax number immediately, and without prompting.

Clause 8 Terms, deadlines

Before the terms specified by MBtech may begin and, furthermore, for adherence to deadlines to be ensured, all technical issues must be resolved and there must be a binding order.
Furthermore, for MBtech to ensure its adherence to its obligations, the customer must adhere to its obligations accordingly and in good time. The right to defend non-fulfilment of contractual obligations remains unaffected.
If, during the course of order performance, it becomes clear that MBtech cannot, for reasons beyond its control (e.g. industrial action or lockout, operational failures or delays on the part of contractors, or force majeure) meet the deadlines agreed, deadlines shall lengthen accordingly. This applies in particular if the customer extends the scope of services during the existing contract term or requests that other modifications be implemented or delays result owing to incorrect or incomplete specifications or other unacceptable contributions supplied by the customer. MBtech shall promptly coordinate and agree upon any resulting deadline postponements with the client.
Should the customer be in default of acceptance or culpable contravention of any other obligation of its cooperation, MBtech shall be entitled to demand compensation for losses incurred, including for any other additional expenditure. Further claims or rights shall remain reserved.
Provided the provisions set forth in section (4) apply, the risk of the accidental loss or accidental deterioration of the product/work shall be devolved to the customer at the time in which the customer is in default of acceptance or default of debtor.
Provided default is due to a negligent contract violation not beyond the control of MBtech, damage compensation liability for shall be limited to typical, foreseeable damages.
MBtech shall be held liable in accordance with statutory regulations if default within its control is due to a culpable contravention of an essiential contractual obligation; in this case, however, liability for damage compensation is limited to typical, foreseeable damages.
For the remainder, MBtech shall, in the event of a default, be liable for each complete week of default within the scope of liquidated default compensation at a rate of 0.1% of the order value, but not exceeding 5% of the order value.
Further statutory claims and rights on the part of the customer remain reserved.

Clause 9 Transfer of risk

Unless otherwise specified in the confirmation of order, delivery "ex works" is hereby agreed for consignable project deliverables.
If desired by the customer, MBtech shall cover the shipment with appropriate transport insurance; costs in this respect shall be charged to the customer.

Clause 10 Liability for defects

The customer must meet its examination and notification of defects obligations accordingly for lodged claims of defects to be deemed viable.
If a defect is deemed to exist, MBtech shall be entitled to supplementary performance in the form of rectification or renewed delivery of service at its own choice. In the case of rectification or replacement of service, MBtech shall be obligated to bear all costs associated with supplementary performance, in particular all transport, shipping and handling, operational and materials expenses, provided these do not increase as a result of project material dispatch to a secondary location to the place of fulfilment.
Should supplementary performance fail to be implemented, the customer shall be entitled to demand a reduction or withdrawal at its discretion.
MBtech shall be held liable in accordance with statutory regulations if the customer asserts damage compensation claims based on wilful intent or gross negligence including wilful intent or gross negligence on the part of our representatives or vicarious agents. Provided MBtech is not accused of a wilful contract violation, damage compensation liability shall be limited to typical, foreseeable damages.
MBtech shall be held liable in accordance with statutory regulations if MBtech is deemed to have culpably violated an essential contractual obligation; in this case too, however, damage compensation liability shall be limited to typical, foreseeable damages. An essential contractual obligation is said to exist if such a violation relates to an obligation whose fulfilment was/is vital to the customer.
Accountability for culpable injury to life, limb or health remains unaffected; this also applies to compulsory liability pursuant to the German Product Liability Act [Produkthaftungsgesetz].
Unless otherwise stipulated above, MBtech precludes its liability.
The period of limitation for defects claims shall be 12 months, to be calculated from transfer of risk.

Clause 11 General liability

Liability for damage compensation over and above that stipulated in Clause 10 is, irrespective of the legal status of the claim asserted, excluded. This applies in particular to damage compensation claims relating to fault at contract conclusion, relating to other breaches of duty or relating to tort claims for property damage compensation pursuant to Art. 823 BGB.
Limitation of liability as per section (1) also applies if the customer demands compensation for fruitless expenditure rather than a claim for damage compensation in place of performance.
If the damage compensation liability of MBtech is excluded or limited, this also applies to the personal damage compensation liability of employees, staff members, colleagues, representatives and vicarious agents of MBtech.

Clause 12 Copyright, property, utilisation

MBtech retains all copyrights, co-copyrights and property rights associated with all processes, documentation, programs, calculations, other illustrations and similar developed by MBtech.
The customer receives the exclusive right to use the deliverables under contract for the purposes defined by the agreement, and to manufacture and/or market corresponding products without restriction to the manufacture and sales area.
Each contracting party shall bear its own costs for property right registration during the period of service provision. This also applies to financial rewards for inventions paid to the respective employees. The contracting parties undertake to inform each other without delay of any submission of a property right registration. Furthermore, the countries in which this occurs must be disclosed.
If employees of MBtech and employees of the customer are party to the discovery of inventions during the term of the agreed services, the contracting parties undertake to agree upon and appoint without delay the party responsible for finalising the joint patent application. Both contracting parties undertake to register such inventions together with each party bearing one half of the associated costs of registration incurred, unless the customer receives exclusive exploitation rights.
If one contracting party is no longer interested in pursuing an industrial property right, the party in question shall offer to surrender its share to the other contracting party.

Clause 13 Third-party rights

MBtech shall be liable to the customer for any violation of the commercial property rights of third parties in accordance with the following provisions. MBtech hereby affirms that its services are not affected by third-party industrial property rights within the Federal Republic of Germany and assumes all liability in this regard.
If a third party asserts a claim against the customer based on registered property rights, for MBtech to be liable to the customer, the customer must inform MBtech of the circumstances without delay and proceed with the handling of such claims and pursuit of its rights in consultation with MBtech. If third-party property rights are violated for which MBtech can be held liable in accordance with this agreement, and if as a result of such a violation, the partial or full use by the customer of a service of MBtech is legally prohibited, MBtech shall, at its discretion and at its own expense,
1. procure for the customer the right to use the service (licence purchase), or
2. make its service free of property rights, or
3. replace its service with another service of corresponding quality that does not violate property rights, or
4. withdraw its service against reimbursement of counterperformance.
If the customer modifies the service of MBtech or connects the deliverables with other devices or equipment, and if third-party property rights are violated as a result, MBtech shall not be liable.
MBtech shall not be liable for violations of third-party property rights resulting from services rendered on the basis of templates, development services or other specifications supplied by the customer, or for any use of a service not foreseeable by MBtech. In such cases, the customer undertakes to exempt MBtech from third-party claims.
The customer shall not be entitled to more extensive or other claims as a result of a violation of third-party industrial property rights. In particular, MBtech shall not compensate for consequential damages, such as loss of production or utilisation, or lost proceeds. These restrictions on liability shall not apply in the event of mandatory liability for standard contractual, foreseeable damages in cases of wilful intent, gross negligence, violations of essential contractual obligations or the failure of guaranteed characteristics. The customer's right to withdraw from the contract remains unaffected.
No rights are acquired by the customer to use industrial property rights of MBtech that affect the interaction of MBtech's service with third-party services.

Clause 14 Termination

If the customer fails to fulfil its mandatory duties of cooperation or fails to ensure the level of cooperation on the part of the product manufacturer and/or user required for service provision, if the information or specifications communicated by the customer, product manufacturer and/or user are fragmentary, unsuitable, or incomplete, or if change requests necessitate additional non-budgeted operational outlay with additional costs not borne by the customer, MBtech shall be entitled to terminate the agreement without notice, after an appropriate period for stipulating suitable prerequisites or for the transfer of additional costs by the customer has elapsed without avail.
The customer undertakes to reimburse any costs incurred by MBtech as a result of summary contract termination. Partial services as set forth in the contract may continue to be rendered until the contractual relationship is officially terminated. These must be accepted and remunerated by the customer.

Clause 15 Confidentiality

Each party to this agreement as well as its vicarious agents undertake to maintain confidentiality in the conclusion and execution of the services provided as well as of all information and documentation received from the opposing contracting party, and furthermore undertake to use this information and documentation for operational purposes only. The customer furthermore undertakes to impose this duty of confidentiality on each product manufacturer and/or user that is involved either on a consultancy or other basis in the performance of the service, or that supplies equipment or components required to render the service. If MBtech appoints subcontractors, MBtech undertakes to impose a duty of confidentiality on these parties. This obligation shall remain in force for a period of 5 years from date of transfer/delivery and/or acceptance.
This duty of confidentiality does not apply to information demonstrable as pre-existing knowledge, information that has been or is legitimately disclosed or made available by third parties, information that is deemed to be in the public domain or generally accessible, or information that becomes known or accessible at no fault of the respective contracting party. Furthermore, this duty does not apply to information demonstrable as a product of independent internal development activity or to information that must be disclosed in accordance with legal regulations or official directives.
For reference purposes, MBtech shall be authorised to cite the circumstances of service provision that underlie the respective contract.

Clause 16 Prohibition of headhunting

During the term of service provision, and in the first 2 years thereafter, the customer undertakes neither to headhunt nor employ in its company any of the employees of MBtech involved in these services, in particular engineers, consultants or managers. This applies equally to in-house, freelance-based and contract-based employment. In the event of headhunting or any other form of culpable acquisition of MBtech employees by the customer, compensation to the sum of EUR 30,000 shall be payable by the customer to MBtech per former employee acquired. The right of MBtech to assert additional claims for damages remains unaffected.
The customer undertakes to inform MBtech immediately if it becomes aware of unauthorised attempts by individual employees of MBtech to render engineering, consultancy or other services in his/her own name or on his/her own account.

Clause 17 Retention of ownership guarantee

MBtech shall retain ownership of all deliverables until receipt of full payment as per the contractual agreement. If the customer is in violation of the contract, in particular where the customer is in default of payment, MBtech shall be entitled to recover deliverables. The recovery of deliverables by MBtech constitutes a withdrawal from the contract. MBtech shall be entitled to utilise the deliverables after these have been recovered; the proceeds of any such utilisation shall be deducted from the customer's accounts payable, minus any reasonable expenses.
The customer undertakes to treat all deliverables with due care; in particular, the customer undertakes to sufficiently insure these items for their "as new" value against fire, water damage and theft at its own expense. Where maintenance and inspection work is necessary, the customer must perform these duties in a timely fashion and at its own expense.
In the event of seizure or other form of intervention by a third party, the customer must inform MBtech immediately in writing, to enable MBtech to institute legal proceedings in accordance with Art. 771 German Code of Civil Procedure [ZPO]. If the third party in question is unable to compensate MBtech for its judicial and extrajudicial costs of legal action in accordance with Art. 771 ZPO, the customer shall be held liable for the accrued loss to MBtech.
The customer shall be entitled to resell deliverables as a routine business transaction; the customer undertakes, however, to surrender to MBtech, at this stage, all accounts receivable at the total invoice value (including VAT) of its account receivable accrued from the resale against its purchaser or third party, and irrespective of whether the purchased deliverable has been on-sold without or after processing. The customer shall remain authorised to collect receivables after surrender. The right of MBtech to collect the receivables itself remains unaffected. MBtech undertakes, however, not to collect the receivables itself as long as the customer adheres to its payment obligations with regard to proceeds received, is not in default of payment, and, in particular, no application for settlement or insolvency proceedings has been filed or payments suspended. If this is the case, however, MBtech shall be entitled to demand that the customer discloses full details of the surrendered accounts receivable as well as their associated debtors, provides all information required for collection, hands over all associated documentation and informs the debtors (third parties) of the surrender.
The processing and alteration of deliverables by the customer is at all times performed on behalf of MBtech. If deliverables are processed together with other materials that do not belong to MBtech, MBtech shall acquire joint ownership of the new materials at a proportionate rate; this rate shall be the proportionate value of deliverables (invoice total, including VAT) to the value of the other processed materials at time of processing. The same shall apply to materials from processing as to deliverables under reserve.
If deliverables are inseparably mixed with other materials that do not belong to MBtech, MBtech shall acquire joint ownership of the new materials at a proportionate rate; this rate shall be the proportionate value of deliverables (invoice total, including VAT) to the value of the other mixed materials at time of mixing. If the nature of the mixing results in the customer's material being regarded as the primary material, the parties to this contract hereby agree that the customer shall transfer to MBtech proportionate joint ownership. The customer undertakes to store such exclusively owned property or jointly held property on behalf of MBtech.
The customer shall also assign the claims to MBtech, which accrue to it through the possible combination of the delivered item with a property against a third party, to secure its claims against it.
MBtech undertakes to release the securities it is entitled to, at the customer's request, insofar as the realisable value of securities exceeds the receivables to be secured by more than 10%; the choice of securities to be released resides with MBtech.

Clause 18 Penalty for breach of contract

Should the customer fail to adhere to a binding contractual mandate, MBtech shall be entitled to charge for the resulting downtime at a rate of 25% of the mandate value. This shall not apply if a replacement mandate deemed commensurate to the original with regard to revenue and capacity utilisation volume is agreed within a period of 4 weeks.

Clause 19 Place of jurisdiction, place of fulfilment

Provided the customer is a trader, the exclusive place of jurisdiction shall be Stuttgart.
The law of the Federal Republic of Germany shall apply; the application of the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded.
Unless otherwise specified in the order confirmation, our business location shall be deemed the place of fulfilment.

Date: April 2010