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General Terms and Conditions of Zühlke Engineering GmbH, Eschborn / Taunus 

1. Scope of Application and Contractual Basis
The present General Terms and Conditions (GTC) shall apply to all supplies and services provided by Zühlke. Customer’s terms and conditions shall not apply, even if Zühlke fails to object to them or performs the Agreement. Modifications and amendments of the current General Terms and Conditions require a written confirmation from the Management to become effective.

2. Conclusion of Agreement
Zühlke will be bound to offers submitted by it for one (1) month. The scope and performance of the supplies and/or services offered is governed by the offer and/or the contract confirmation issued by Zühlke. In connection with development services, only the development purpose or standard described in the offer and/or contract confirmation will be considered when judging whether the supplies and/or services due were rendered. In the event that the customer orders a supply or service from Zühlke without a prior offer, the contract will not enter into force until Zühlke confirms the order in writing or performs the contract.

3. Prices and Payment
The agreed remuneration is subject to the offer and/or contract confirmation. In the absence of an agreement, the Zühlke price list valid at the time the contract is performed will apply. Value added tax will be added to all remuneration amounts.

In the event that Zühlke provides supplies and/or services beyond the scope defined in the offer and/or contract confirmation at the request of the customer, the customer shall pay a separate remuneration for them. Additional supplies and/or services may be agreed in writing or orally, provided, however, that in the latter case Zühlke confirms this to the customer in writing, via fax or electronically. In the absence of a separate agreement on remuneration, the remuneration rates Zühlke generally charges will apply.

Zühlke shall invoice the customer for its supplies and/or service on a time and materials basis at regular intervals. The agreed compensation will become due and payable upon the acceptance of the supplies and/or services. Furthermore, Zühlke has the right to request payments on account to the extent that these supplies and/or services cover a period of more than six (6) weeks. In this case, any supplies and/or services provided by Zühlke will be invoiced in the beginning of a month for the preceding month.

All invoices issued by Zühlke shall be paid within fourteen (14) days from the date of invoice without any deduction. Objections to an invoice shall be raised within twenty (20) days in writing. In the absence of a written notice to Zühlke, the invoice amount is deemed to be due and payable. The customer may only offset claims against uncontested claims and/or claims finally adjudicated by a court.

4. Supplies and Services
Zühlke offers its customers high quality professional services for technical development. During the provision of supplies and/or services only those statutory rules, requirements and standards shall be observed that are referred to in the offer, of which the customer notified Zühlke prior to the preparation of the offer or which were obvious to Zühlke.

Delivery and performance deadlines indicated in the offer or the contract confirmation are approximate dates, unless the parties expressly agree otherwise. If Zühlke fails to comply with the agreed delivery and/or performance periods, the customer may set forth an additional period for delivery and/or performance that shall not be less than ten (10) days.

5. Customer’s duty to co-operate
Generally, the supplies and/or services provided by Zühlke require an intensive exchange of information between the parties. The customer shall provide any information to Zühlke that is required for contract performance and shall use its best efforts to assist Zühlke in any regard. In the event that Zühlke needs to provide supplies and/or services at the customer's facilities, the customer shall ensure a reasonable work environment.

When development services are ordered, the parties shall always agree on the purpose of use of the supplies and/or services provided by Zühlke. The customer shall ensure that the supplies and/or services provided by Zühlke are utilized in accordance with the contract and with statutory provisions. In connection herewith the customer shall ensure that the supplies and/or services are exclusively used for the purpose described in the offer or contract confirmation. In the event that the purpose of the contract is transgressed and, therefore, third parties claims are asserted against Zühlke, the customer shall indemnify Zühlke for all damage and expenses. The customer shall promptly make available to Zühlke any and all relevant information in the appropriate form that is relevant to a dispute.

6. Inspection of Supplies and/or Services and Acceptance
The customer shall inspect all interim results (test results, documents, specifications, program parts, etc.) on an ongoing basis that are provided to it by Zühlke and shall promptly notify Zühlke if it has any objections.

The supplies and/or services provided by Zühlke will be verified by the Customer, if possible. The inspection shall start on the agreed date, in the absence of an agreement at the date on which Zühlke notified the customer that it has provided its supplies and/or services. The inspection period is ten (10) business days, unless otherwise agreed. The customer shall promptly notify Zühlke of any apparent defects. Zühlke shall remove or rectify the defect immediately. In the event that during the inspection period defects or errors should occur that prevent or impair the proper inspection, the inspection period shall be extended. If the customer does not notify Zühlke of any defects during the inspection period or integrates the supplies and/or services of Zühlke into its production, the acceptance of the supplies and/or services is deemed to have occurred. However, if there are still defects at the conclusion of the inspection period, only defects that significantly impair the supplies and/or services of Zühlke shall prevent the confirmation of the due provision of supplies and/or services.

In the event of contracts for work (Werkvertrag) the inspection referred to above constitutes the acceptance of the work.

7. Passing of the Risk of Loss and Ownership
Until full payment of the purchase price has been received and any other existing or future claims from the business relationship with the customer have been settled, the supplies and/or services provided by Zühlke remain the property of Zühlke.

The risk of loss of goods passes to the customer when the goods are shipped or collected.

8. Industrial Property Rights
Zühlke grants the customer a non-exclusive, world-wide, indefinite and irrevocable right to use in and to the agreed supplies and/or services. The rights to use are granted upon full payment of the agreed remuneration. In the event that computer programs are provided, the customer will receive a copy of the source code, unless programs or program parts belonging to third parties were used. If open source software was used in the course of contract performance, rights to use in and to the corresponding software will be transferred and granted only in accordance with the applicable license terms and condition of the pertinent open source community. Zühlke shall notify the customer whether and to what extent it intends to use open source software. In the event that Zühlke and the customer have jointly created the work result, they are both individually entitled to the rights therein. If the rights are exploited by either party, this shall not require the consent of the other party. 

In the event that Zühlke staff makes inventions during contract performance, Zühlke shall claim them without any restriction and apply for a registration as an intellectual property right in its own name. Zühlke is the exclusive holder of these intellectual property rights. In the event Zühlke does not intend to apply for registration of an intellectual property right for a certain invention, it shall notify the customer hereof in due time and in writing and offer the customer the assumption of the intellectual property right free of charge. In the event that an intellectual property right registered in the name of Zühlke results from a contract, Zühlke shall grant the customer a non-exclusive license for this invention which allows it to use the invention for the contractually agreed purposes without separate, additional remuneration.

9. Notice of Defect, Defects as to Quality and Defects in Title
The customer shall promptly inspect any supplies and/or services provided by Zühlke and promptly notify Zühlke of any defects or non-compliances in writing in accordance with § 377 of the German Commercial Code (HGB).

Zühlke warrants that the quality of the supplies and services is in compliance with the contractual agreements, that they are fit for the contractually agreed purpose and that the contractual use of such supplies and/or services does not infringe on any third party rights. The customer shall assist Zühlke in the event of defects as to quality and in title by providing a specific description of the defects that occur, by granting Zühlke the time and opportunity for inspecting and removing the defects and, to the extent possible, by assisting Zühlke in the rectification of defects.

When defects are shown to exist, Zühlke shall initially rectify the supplies and/or services or provide a replacement. If defects in title are shown to exist, Zühlke will discharge its warranty duties by providing the customer with a legally acceptable means of utilizing the supply or service. In the event that subsequent improvement ultimately fails, the customer has the right to reduce the remuneration or to rescind the Agreement in accordance with statutory provisions. Claims for damages or the reimbursement of wasted expenditures are governed by § 10.

Defects shall come under the statute of limitations:

  • after five (5) years regarding defects as to quality or defects in title in the cases described in § 438 par. 1, no. 2 of the German Civil Code (BGB) and § 643 a par. 1 no. 2 of the German Civil Code,
  • after one (1) year regarding all other defects as to quality,
  • after one (1) year in case of defects in title, unless the defect in title exists in an in rem right of a third party based on which the surrender of the goods or services may be claimed,
  • after three (3) months for used goods, and
  • in all other cases, the limitation period shall be in accordance with the statutory provisions, unless the parties have agreed otherwise.

If a defect as to quality or a defect in title has been fraudulently concealed, the statutory limitation period shall apply.

In the event that a third party asserts claims against the customer that conflict with the contractual use of the supply or service provided by Zühlke, the customer shall promptly notify Zühlke hereof in writing and comprehensively. Even at this point in time, the customer authorizes Zühlke to settle the dispute with the third party on its own, either in court or out of court. In the event that Zühlke acts on this authorization in its own discretion, the customer shall not recognize the third party claims without the prior consent of Zühlke. Zühlke shall indemnify the customer for any costs and damage incurred in connection with the defense against the claim, to the extent that these costs and damages are not due to any conduct on the part of the customer that is contrary to duty.

The above provisions apply to all supplies and/or services provided by Zühlke, irrespective of whether these are categorized as services under a contract for work or professional services.

10. Damages
Zühlke shall pay damages or reimburse wasted expenditures, irrespective of the legal cause, only to the following extent:

  • in case of willful wrongdoing or in cases where Zühlke has given a guarantee or assumed the risk of procurement in the full amount,
  • in case of gross negligence, in the amount of the foreseeable damage that was intended to be avoided by compliance with the violated duty;
  • in all other cases only when a material duty is violated which jeopardizes the attainment of the purpose of the contract, limited to compensation for the typical and foreseeable damage, however, always restricted to the remuneration due under the corresponding agreement.

The statutory liability for personal injury, damage to health or loss of life, or for product liability remains unaffected.

In the event that a damage caused by Zühlke is covered by an insurance policy, Zühlke shall make available the full payment obtained from the insurer to the customer, irrespective of the liability limitation. At the request of the customer, Zühlke is willing to obtain additional insurance coverage.

The customer is aware that it must make backup copies of its data at regular intervals pursuant to its duty to reduce potential damage. Zühlke shall only be liable for the loss of data to the extent that the customer has discharged its backup duty to a reasonable extent and the lost data may be restored electronically within a reasonable amount of time.

11. Confidentiality, Non-Solicitation
The parties shall treat any information, in particular, business and manufacturing secrets, which comes into their possession from the other party during the bidding period and/or term of the agreement, in strict confidence. This obligation shall survive the termination of the agreement.

Upon termination or expiration of the agreement, the parties shall return any documents and records they have received from the other party in the course of the cooperation for contract performance. Electronically delivered documents must be deleted so far as is reasonably practicable. However, the party obligated to return documents and records has the right to retain a copy of the documents or records to be returned or deleted that is stored separately and protected against unauthorized access. This copy serves the sole purpose of compliance with statutory obligations and, if applicable, legal defense.

The parties agree to absolute confidentiality toward third parties. Third parties are not companies or other identities in the purpose of §§ 17 ff. AktG.

For internal and external communication Zühlke uses Microsoft Office products and where required data center services of third parties. The parties agree that this is not a breach of confidentiality obligations. The obligation of confidentiality shall survive the termination of the agreement.

Both parties agree not to solicit the employees of the other party during the term of the agreement and for a year beyond its expiration or termination.

The defaulting party shall pay for any breach of a confidentiality, return or non-solicitation duty a contractual penalty in the amount of EUR 30,000 to the non-defaulting party. Payment of a contractual penalty does not release either party from its compliance with contractual duties and does not preclude that additional claims to damages may be asserted.

12. Final provisions
This Agreement is governed by the law of the Federal Republic of Germany; the UN Convention on Contracts for the International Sale of Goods shall not apply. Place of jurisdiction is Frankfurt on Main, Germany.