General Terms and Conditions (GTC) of Motorentechnik Kolb GmbH for the testing and development of engines
As of June 2019
1. Preliminary remark
MTK is a specialist company for combustion engines, with test fields for car and small truck engines and for transmission tests on the drive train test bench. With the variably designed MTK systems, individual components can be examined and scientific test series can be carried out, function development can take place, continuous operation can be simulated or an entire drive train can be tested. As a supplement to the services in the test field, MTK offers the construction and development of mechanical test bench components, the assembly and disassembly of test parts and the measurement and re-measurement of engines.
2.1. These General Terms and Conditions apply in the version valid at the time the order is placed for all orders from customers for the testing and development of engines in the aforementioned business areas. They regulate the general conditions for the allocation and implementation of testing and development services between MTK and the customer and form the basis for the offer and order.
2.2. MTK does not recognize deviating conditions of the customer unless MTK has expressly agreed to their validity.
3. Contractual Partner
Contractual partners are customers who are exclusively entrepreneurs in accordance with Section 310 (1) of the German Civil Code, i.e. natural or legal persons or partnerships with legal capacity who are exercising a commercial or independent professional activity, and Motorentechnik Kolb GmbH, Ottostraße 12, 85080 Gaimersheim, telephone: 0 84 58 32 43-0, fax: 0 84 58 32 43-99, e-mail: , registry court: City of Ingolstadt, HRB 1118, managing director: Johann Kolb, VAT ID no .: DE 128589970
4. Subject of the contract
The subject of the contract is the rental of engine test benches, as well as the operation of the test benches and the execution of the test programs by MTK, or the placement of a development or production order.
5. Conclusion of contract
5.1. The customer and MTK conclude a service contract that defines the test and/or development order and regulates its processing. These General Terms and Conditions become part of the contract.
5.2. MTK creates a binding offer for the requested scope. The contract is concluded through the customer placing an order (offer within the meaning of Section 145 of the German Civil Code) and the order confirmation from MTK (acceptance within the meaning of Section 146 of the German Civil Code).
5.3. Alternatively, the parties can conclude a framework agreement that is designed for a longer period, defines the test and/or development order and regulates the processing of the order. These terms and conditions become the subject of the framework agreement.
6. Performance of the Service
6.1. The processing of the test and/or development order is carried out exclusively on the basis of the customer’s disposition.
6.2. The testing and/or development service is provided by MTK at the location of its business premises.
6.3. Changes requested by the customer that change the originally commissioned scope (costs, deadlines, quality) will be offered to the customer in writing by MTK. The implementation takes place after appropriate commissioning.
6.4. The scope of documentation of the result of the testing and/or development work is jointly determined in writing by the parties.
6.5. MTK is entitled to award partial orders to third parties in order to fulfil the order-related development service.
6.6. MTK is liable immediately from the time the engines and other components are handed over by the customer. The handover is documented by the contracting parties.
6.7. Liability for damage to the test items during the test is generally excluded, except in the case of gross negligence or intent.
7. Scope of Use
Use entitles the customer to carry out or apply the development service, to analyse it, to adapt it to their own needs and to pass it on, even in a modified form. This also expressly applies to development services that are protected by copyright for MTK.
8. Acceptance and Terms of Payment
8.1. Acceptance of the testing and development service: MTK will inform the customer that the testing and/or development service has been performed as ordered. Four weeks after delivery of this notification, the handover by MTK or acceptance by the customer is deemed to have taken place. From this point in time, all services of MTK are deemed to have been rendered and the order to be fulfilled.
8.2. Acceptance of other performances and services: MTK informs the customer of the fulfilment of the order. Acceptance by the customer must be recorded in writing. If the customer does not accept the product despite a written request from MTK, the performance/service is deemed to have been accepted four weeks after the written request.
8.3. Compensation: The costs incurred in connection with the development service to be provided, the costs of documentation, reproduction, shipping, support, customer-specific further or contract development, maintenance, advice and training, and the like are to be compensated appropriately in any case. Usage or license fees will be announced separately.
8.4. The accounting is triggered by the acceptance of the development service and the other performance or services.
9. Commercial property rights
9.1. Insofar as commercial property rights already existed with the customer before the start of the trial service, the customer remains the owner of the same. However, the customer grants MTK a free right of use for the purpose and duration of the test service, insofar as this is necessary for the test service. The exclusive right to register property rights for the results of the commissioned test service is transferred to the customer upon full payment of the agreed fee for the provision of the test service. If the customer decides not to register, he will notify MTK of this in writing.
9.2. In addition, MTK will inform the customer about all inventions arising in connection with the performance of development services. If the customer registers industrial property rights to the development service, MTK’s non-exclusive, free, transferable right to use the development service, unrestricted in terms of time, space and content, shall remain. The customer also expressly agrees that MTK is entitled to use services or partial services that are produced or used as part of the provision of the development service in question in other projects in which the customer is not necessarily involved.
9.3. The parties are also entitled to separately agree on a deviating agreement with regard to industrial property rights.
10. Warranty / Compensation
10.1. The liability from clause 6.6 applies to test services of these terms and conditions.
10.2. For development services, MTK guarantees the application of scientific care and compliance with the recognized rules of technology.
10.3. In view of the constant and rapid progress, a warranty period of 6 months applies from handover or acceptance. The warranty period for rectifications is 4 weeks: Warranty claims become time-barred within 6 months from the timely notification of a complaint.
10.4. Recognizable defects or missing scopes are to be reported to MTK in writing without delay, but no later than within 8 days after the start of the warranty period, and hidden defects within 8 days after their discovery, otherwise the service is deemed to have been accepted without reservation, properly and free of defects.
10.5. If devices, materials or other items from third parties (third-party products) have been used in research or development work and if a defect in the research and development product handed over to the customer is due to the defectiveness of these third-party products, MTK shall assert the claims to which it is entitled against third parties Request to the customer from.
10.6. The liability of MTK, its legal representatives and vicarious agents for breaches of contract or tort is limited to cases of gross negligence.
10.7. It is the responsibility of the customer to check whether its use infringes the property rights of third parties. The customer exempts MTK from claims for damages, enrichment and all other claims, insofar as they arise from the project-related research and development work and were not brought about by MTK intentionally or through gross negligence.
11. Confidentiality Obligation
Unless already included in the service contract, a non-disclosure agreement is regulated separately.
12. Duration and Termination
12.1. The contractual relationship between the customer and MTK is concluded for the duration of the contract. It ends by expiry of time or fulfilment of the order or written termination by the customer or MTK as stipulated in the contract.
12.2. The contractual relationship can be terminated prematurely by the customer or MTK at any time for important reasons without observing a period of notice, in particular if one of the contracting parties is unable to fulfil an essential obligation of the contract within 30 days of receipt of a written notification or about the assets of one of the parties insolvency proceedings are opened.
12.3. Should it turns out, during the processing of the order, that MTK cannot perform the service in a timely manner for reasons that are technically beyond its control, or if proper processing cannot be guaranteed for unavoidable organizational or personnel reasons, the parties will discuss the reasons for this and make a separate agreement on the continuation of the order. If no agreement is reached, the customer is entitled to terminate the contractual relationship by giving one month’s notice to the end of each calendar month.
12.4. In the event of termination, MTK must hand over the result of the service achieved up to that point as soon as possible. Section 8 of these General Terms and Conditions applies accordingly. The customer is obliged to reimburse MTK for the costs incurred up to the point in time at which the termination took effect, including a profit corresponding to the status of the work.
12.5. A development or test order that has started can be cancelled by the customer at any time. In these cases, the expenses incurred up until the termination and the resulting expenses will be charged.
13. Governing Law and Jurisdiction
13.1. German law applies to the exclusion of the UN sales law, even if the customer has his place of residence or company headquarters abroad.
13.2. For all current and future claims arising from the business relationship with merchants, legal entities under public law or special funds under public law, the exclusive place of jurisdiction is the registered office of MTK. The same place of jurisdiction applies if the customer does not have a general place of jurisdiction in Germany, relocates his domicile or usual place of residence abroad after the conclusion of the contract or his domicile or usual place of residence is not known at the time the action is filed.
MTK reserves the right to amend the aforementioned terms and conditions at any time.
The customer will be informed of any changes in an appropriate manner