Allgemeine Geschäftsbedingungen – Verkauf und Dienstleistungen
der Workaround GmbH, Rupert-Mayer-Straße 44, 81379 München, Deutschland
Fassung GTCEU, Jun 2024
General Terms and Conditions – Sales and Services
Workaround GmbH, Rupert-Mayer-Straße 44, 81379 Munich, Germany
Workaround retains all industrial property rights of the delivery items, (including existing copyrights, patents, trademarks, labelling or names and personal rights), the sales documents (in particular illustrations, drawings, and information of weight and dimensions), and the samples. Sales documents and samples may not be used for non-contractual purposes and shall be returned to Workaround immediately upon request. Sales documents and samples may only be passed on to third parties with the prior written approval of Workaround.
Workaround reserves the right to change the design and material as far as the agreed function is not impaired. For further amendments the consent of the Customer is required.
Scope of Delivery, Shipment, Transfer of Risk, Transport Insurance
Unless differently agreed, claims of sold delivery items become due with the delivery of the respective delivery item and other claims become due with receipt of the respective invoice. The payment shall be regarded as completed when Workaround has gotten the whole amount. (payment receipt).
Workaround shall be authorized to make issue partial invoices in the case of partial deliveries and / or services as defined in clause 5.2.
Unless otherwise agreed, payments of the Customer to Workaround pay off the debts of the Customer shall in order of their due date in accordance with section 7.1.
The Customer shall bear all fees, costs and expenses incurred in connection with any legally successful prosecution outside Germany.
Defect Right, Inspection Obligation
Workaround shall have the right to inspect and examine the defect of the rejected deliverable. The Customer shall provide Workaround with sufficient time for this purpose. If Workaround cannot identify any defect of the deliverable, the Customer shall reimburse Workaround for the costs occurred by the examination of the deliverable.
In the case of a defect of the deliverable, Workaround shall be authorized to rectify the defect by either repairing or replacing the deliverable. If Workaround refuses to remedy such defects or if its efforts to do so fail, then the Customer can choose on the basis of their legal rights to withdraw from the contract or to reduce the purchase price. Workaround shall only be liable for damages due to defectiveness of the deliverable to the extent specified in section 9. Warranty rights beyond that are excluded. §§ 478 f. BGB shall not be affected. The Customer is obliged to request supplementary performance from Workaround in writing and with indication of the post- fulfillment deadline.
Liability, Compensation for damages
for damage resulting from injury to life, limb or health, except in cases of a breach instructions contained in ProGlove User and Regulatory Guide, attached hereto and printed and attached to each product.
Due to a breach of duty that does not exist in a defect, the Customer can only resign or terminate if Workaround is responsible for the breach of duty. A free termination right of the Customer (especially according to §§ 650, 648 BGB) is excluded. Incidentally, the legal requirements and legal consequences apply.
The Customer is obligated to carefully handle the deliverables for the duration of the retention of title (“reserved goods” [Vorbehaltsware] in the following) and to immediately give notice to Workaround in case of impoundment, seizure, damage or loss.
Workaround shall maintain ownership of reserved goods processed or transformed by the Customer. If the reserved goods are processed with other items, then Workaround acquires co-ownership of the new item proportional to the value of the reserved goods over the value of the processed items at the time of the processing. In addition, the same applies for processed items as for delivered items under retention of title.
For deliveries to areas where other legal orders apply and the regulation about the retention of title as defined in clause 10 does not have the same security effect as in Germany, the Customer will do everything to grant Workaround the respective security rights immediately. The Customer will participate in all measures, such as registration, publication etc., which are necessary and beneficial for the effectiveness and enforceability of these security rights.
At the request of Workaround, the Customer shall be obligated to adequately insure the reserved goods against usual risks, to provide Workaround with the corresponding proof of insurance, and to assign the claims from the insurance contract to Workaround in the amount of the value of the conditional goods.
Without the written consent of Workaround, the Customer shall not be authorized to transfer the usage rights of the software separately from the delivered item to third parties, to give licenses to third-parties or to give access to third parties, may it be temporarily or permanently.
If the Customer is required to make the products to be delivered by means of certain instructions, information, documents, drafts or drawings (“Instructions”), the Customer guarantees that the execution of the instructions does not infringe any rights of third parties such as patents, utility models and other Protection and copyrights. The Customer shall indemnify Workaround against all claims of third parties who assert such claims against Workaround for such infringement and shall grant Workaround the non-exclusive and non-transferable, permanent, sublicensable right to use the instructions in connection with the performance of the Agreement.
If, within the framework of the collaboration or delivery between the two parties, new knowledge or know-how about the product or services (“product knowledge”), is discovered, Workaround will be the sole owner or the sole beneficiary of this product knowledge. The Customer transfers all property rights about product knowledge to Workaround. If a transfer of the property rights as the law stands is not possible, the Customer grants Workaround the exclusive, transferable, local and temporally unlimited right to use this knowledge, specifically to process, develop and market this knowledge. Workaround hereby accepts the transfer or grant of rights. If the participation of the Customer or their employees is necessary for a the registration for a property right, the Customer is obligated to carry out the necessary cooperation activities upon request. If Workaround requires future usage rights for products not yet known at the time of product knowledge, the Customer will also grant these on request and against a separate reasonable compensation as mentioned above. If knowledge or know-how about manufacturing processes arises in connection with the delivery and / or within the framework of the collaboration between the parties, (“process knowledge”), the Customer shall be sole owner or exclusive beneficiary of this process knowledge. Workaround transfers all property rights about the process knowledge to the Customer. If Workaround is not able to transfer the property rights under the state of law, Workaround grants the Customer the exclusive, transferable, local and temporally unlimited right to use the process knowledge in all known ways of use, in particular to process, develop and market them to their full preference. The Customer hereby accepts the transfer or grant of rights. If the cooperation of Workaround or its employees is required for the registration of a protective right an application for a protective right, Workaround shall be obligated to carry out the necessary activities upon request. In case the Customer requires usage rights of the process knowledge in the future that are not yet known, Workaround will also grant these to the aforementioned extent upon request and for an adequate fee. Each party shall grant to the other party a non-exclusive, free, and sublicensable right to use the product knowledge or process knowledge until the claims of the contracts are balanced.
Each Party may disclose confidential information to the necessary extent (i) to comply with a court or a legal order or somehow comply with the requirements of mandatory legal regulations. Thereby the Disclosing Party shall be in charge of informing the Receiving Party in writing and to undertake reasonable effort to obtain an order of protection (iIi) to identify the rights of a party under this agreement by a court of law; This shall include proposals necessary for this request.
Prototypes
Workaround explicitly points out that prototypes are in the development stage and have not yet left the process of production. Prototypes are not yet intended for final market entry to the general public and they are not allowed to be passed on to third parties, as long as no serial production has yet started. They have to be treated confidential.
The prototypes are tested during the trial phase at the Customer on the basis of a written project agreement and under guidance of the employees of Workaround.
The technical execution of the prototype and the attached documentation are provisional and the technical data can still be changed. Prototypes usually do not already have the product certifications and markings of the serial product.
The law of the Federal Republic of Germany applies to these Terms of Delivery as well as to the contractual relationship between the two parties, excluding its conflict rules and the standard UN convention (CISG).
If shown bilingual, the version in English language of these Terms of Delivery shall be legally binding in all respects and shall be applied in the case of contradictions.
Any violation of paragraph 1 shall constitute a material breach of these Terms and Conditions, and ProGlove shall be entitled to seek appropriate remedies, including, but not limited to seeking indemnification from Customer and holding Customer liable for all damages that ProGlove might incur as result of a breach of paragraph 1.
The Customer shall immediately inform ProGlove about any problems in applying paragraph 1 including any relevant activities by third parties that could frustrate the purpose of paragraph 1.
The object of the contract may be fulfilled at one step or at more steps within a longer period of time.
The employees of Workaround who deliver the services, are selected by Workaround, taking into account the interests of the Customer. These employees of Workaround are qualified for the provision of services.
The employees assigned by Workaround to provide the services are not subject to the instructions of the Customer.
Final Clauses
Version GTCEU June 2024