PaCon Limited & Co. KG (hereinafter referred to as “PaCon”) carries out contract research and consulting in the field of paper technology. The following general terms and conditions shall apply to the placing of orders in these areas:
1. Scope of application
a) The following terms and conditions apply to all orders for consulting, testing, measuring, research and development of products, concepts, process controls and the like.
b) Deviating, conflicting or supplementary terms and conditions of the Client shall not become part of the contract unless PaCon agrees to their validity in writing.
c) As a rule, the provisions of service contract law (Sections 611 et seq. of the German Civil Code [BGB]) shall apply to the orders placed by the Clients, unless Pacon owes the production or delivery of a state-of-the-art service as the result of research and development on the basis of an express agreement. In this case, the provisions of the law on sales or contracts for work and services shall apply in accordance with Section 7 c).
2 Subject matter of the contract, time of performance
a) The subject matter of the contract shall be the services and work described in detail in the specification of services and in the letter of offer.
b) Insofar as the service description or the letter of offer contains a time for the performance of the service, this time shall only be deemed to be binding if the time of performance is expressly designated as binding by PaCon. If it becomes apparent during the execution of the order that the bindingly agreed time for performance cannot be met, PaCon shall inform the client of the reasons for the delay and agree on a reasonable adjustment with the client. If it transpires that the delay is not due to circumstances for which Pacon is responsible, but is due to circumstances in the room itself or for which the Client is responsible, Pacon shall be entitled to an extension of the bindingly agreed date. Pacon shall be entitled to unilaterally determine a reasonable extension.
a) The remuneration shall be determined in accordance with the provisions contained in the offer and shall be calculated neither as a fixed price nor as a price based on time and effort. . The statutory value added tax shall be added to the price in each case.
b) Any travel costs incurred shall be charged according to expenses, time and effort. Unless otherwise agreed, a fee of Euro 0.80 per kilometre driven plus travel time shall be charged for travel by car to .
c) Incidental costs for postage, telephone, typing and copying are included in the agreed fees. Other material costs are not included.
d) Pacon shall inform the Client without delay if it is foreseeable that the performance target cannot be achieved with the agreed remuneration. If this was neither foreseeable for PaCon when the order was placed nor if this circumstance is the responsibility of PaCon, Pacon shall be entitled to adjust the remuneration. Pacon shall propose a corresponding adjustment to the Client. If no agreement can be reached on this, Pacon shall have the unilateral right to determine an appropriate adjustment. Alternatively, the Client may terminate the contract at that time with full payment of the agreed remuneration.
a) The agreed payments are due after issuing the invoice and the agreed payment schedule, but no later than 14 days after issuing the invoice. Payments are to be made without deduction to the specified PaCon account, quoting the invoice number.
b) Offsetting against Pacon’s claims is only permitted if the counterclaim is undisputed or has been legally established.
c) The client may only exercise a right of retention if his counterclaim is based on the same contractual relationship.
5. Rights of use to the performance result
a) The service result shall be handed over to the Client in accordance with the service description after completion of the order.
b) The Client shall receive a non-exclusive right of use to the results of the services for an unlimited period of time and compensated for with the agreed remuneration for the application purpose on which its order is based.
c) Secret know-how shall become completely free for the contractor at the latest after a period of 5 years from the first time it is put into circulation. In all other respects, the statutory provisions on the term of protection (copyrights, patent rights, databases) shall apply.
d) If industrial property rights (patents, utility models, etc.) arise in the course of the provision of services, the Client shall bear a reasonable share of the costs for the registration and defence of the industrial property rights as well as the employee inventor’s remuneration.
e) If the Client desires the granting of exclusive rights of use, a separate agreement shall be concluded in this regard. In any case, Pacon shall retain its own exclusive right of use to the performance results created by it alone or jointly with the Client.
f) If ancillary copyrights already created by Pacon are used in the performance of the service, the Client shall receive a non-exclusive right of use to these which is compensated for with the agreed remuneration, insofar as this does not conflict with any other obligations on the part of Pacon.
6. Property rights of third parties
a) If, during the performance of the contract by Pacon, it becomes apparent that, in the course of the performance or in the course of the future exploitation of the result of the performance, conflicting third-party property rights must be observed, the parties to the contract shall decide by mutual agreement how these property rights are to be taken into account in the further performance of the contract . Pacon shall be obliged to inform the Client of any such rights without delay.
b) Pacon shall be liable for the infringement of such third-party industrial property rights if it has breached its duty to inform. Liability shall be limited in accordance with Section 8 below; beyond this, Pacon shall only be liable if such property rights exist in the Federal Republic of Germany, the Client uses the service result in accordance with the contract and Pacon is immediately informed in writing by the Client of the claims asserted by the third party. Pacon shall be entitled to subsequent performance, which it may choose to fulfil by modifying the result of the performance in such a way that the affected third-party property rights are not infringed or by obtaining from the third party the Client’s authorisation to use the result of the performance in accordance with the contract.
The contracting parties undertake not to disclose to third parties any facts of a technical or commercial nature which are mutually identified as requiring secrecy. This shall also apply after termination of this contract. The only facts and circumstances which are not confidential are those which are already public knowledge or become public knowledge during the performance of the contract without the contracting parties, their employees or vicarious agents being responsible for this.
a) Pacon’s liability arising from the breach of contractual obligations and tortious liability shall be limited to intent and gross negligence. Pacon shall only be liable for slight negligence in the event of a breach of material contractual obligations. In any case, liability shall be limited to the foreseeable, contract-typical damage, but at most to the amount of the order sum of the underlying contract.
b) In the event of non-performance, non-timely performance or defective performance of the services incumbent upon Pacon, a claim for damages in lieu of performance may only be asserted against Pacon if Pacon has been unsuccessfully set a reasonable deadline for subsequent performance.
c) In the event that PaCon has to fulfil obligations under a purchase contract or a contract for work and services, the corresponding statutory provisions shall apply in accordance with the following gender clauses:
aa) Pacon shall be granted the right to supplementary performance at least twice, setting a reasonable deadline, and if necessary more times depending on the circumstances.
bb) The right of withdrawal can only be exercised in the case of a significant defect.
cc) The Client must immediately inspect the results of the work handed over by Pacon and immediately notify Pacon of any defects. Claims for recognisable defects shall only exist if they are notified to Pacon in writing within a period of 14 days from handover.
9. Limitation period
Claims of the Client arising from a slightly negligent breach of duty or tort shall become statute-barred within twelve months. Claims of the Client due to a defect in the cases of § 438 para. I no. 2 (right of recourse) and § 634 a para. I no. 2 (construction defects) are excluded from this.
10. Retention of title
a) Ownership of the result of the performance as well as the rights of use to which the Client is entitled shall not pass to the Client until the agreed remuneration has been paid in full. PaCon’s property, including the rights of use, may neither be pledged nor transferred by way of security to .
b) The Client shall be entitled to use performance results already transferred to it, irrespective of the reservation of proprietary rights. However, resale of the performance results is only permitted if the Client assigns to Pacon all rights arising from the resale until the agreed remuneration has been paid in full.
The Client shall not be entitled to publish the results of the services provided to it unless Pacon agrees to this. In this case, the Client shall name the author and Pacon. The agreement shall be made with regard to the fact that e.g. dissertations, diploma theses or applications for industrial property rights are not impaired.
The test results may not be published or passed on to third parties without Pacon’s written consent. Excluded from this are customers of the Contractual Partner, authorities and offices concerned with the test reports and other persons commissioned by the Contractual Partner who are obliged to maintain professional secrecy.
In the event that the test reports become the subject of a legal dispute, the Contractual Partner is obliged to inform Pacon of this immediately.
a) Subsidiary agreements, amendments or additions to the contract must be made in writing.
b) The place of performance for the provision of services shall be Pacon’s registered office. The same applies to the place of performance for payments by the Client.
c) The contractual relationship shall be governed by the law of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
d) Should one or more provisions be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The same applies in the event of a loophole.