General conditions of trade
ARTICLE 1: Scope
1. These General Conditions shall apply to all orders addressed to and activities undertaken by MKm, irrespective of their nature.
2. Other conditions and any General Conditions of the client shall apply only if and in so far as expressly accepted in writing by MKm.
3. By accepting an offer made by MKmetric or otherwise entering into an agreement with MKmetric the client shall be deemed to have waived his own conditions, regardless of any reference to these by the client.
4. It is agreed between MKmetric and the client that once a contract has been concluded under these conditions, these conditions shall also apply to further offers and contracts.
5. Without prejudice to the above MKmetric shall always be entitled to state in advance that conditions other than these General Conditions shall apply to a given project, activity or other type of performance.
6. In the event of any discrepancy between the General Conditions published on this web site and any other texts printed, translated and/or distributed only the signed text available at the office of MKmetric shall be valid.
7. The Code of Conduct of MKmetric shall be deemed to be an integral part of these General Conditions.
ARTICLE 2: Offer and acceptance
1. Unless expressly stated in writing to the contrary, all offers made by MKmetric shall be without obligation. Unless otherwise stated in the offer, binding offers shall never be valid for more than two months from the date of issue.
2. Our prices are based, inter alia, on the rates, wages, prices, etc. in force at the time of the offer, the time the agreement is entered into, or the time of the actual performance. If one or more of these factors change, the prices shall automatically change accordingly and shall also be binding with respect to current agreements with the proviso that, if the prices change within three months of the date on which the agreement was entered into the client shall have the right to dissolve said agreement, unless specifically agreed otherwise. In the event that the client employs his right of dissolution he shall be obliged to pay for the performance carried out by MKmetric to that date.
3. If it is agreed between MKmetric and the client that if the client shall pay in a currency other than Euros, MKmetric shall be entitled to pass on exchange rate fluctuations which affect the price to the customer.
4. The offer shall specify the result of the work commissioned: written advice, report, model, online service, etc.
5. Orders shall only become binding on MKmetric when they have been accepted and confirmed in writing by MKm. Without prejudice to the provisions of the preceding sentence, orders for which MKmetric requires a payment in advance shall only become binding on MKmetric after receipt of such payment.
6. Amendments and/or additional terms to the order shall only become binding when they have been agreed in writing between the parties.
7. By issuing an order the client shall be bound with respect to MKm.
8. MKmetric shall be free to engage other institutes or third parties to carry out parts of the commission.
9. MKmetric shall undertake the commission to the best of its abilities. Undertaking this commission obliges MKmetric to undertake the requisite efforts. MKmetric shall avoid any actions which could affect the independence of its recommendations/advice.
10. MKmetric may refuse a commission if it concerns an order from an organisation or company which is a competitor of a current client of MKm. MKmetric shall be free to decide whether or not to reveal the reasons for such refusal to the potential customer.
ARTICLE 3: Confidentiality
1. MKmetric shall be bound to maintain confidentiality if, and in so far as this is expressly agreed with the customer. Such agreement may also define the period during which the duty to maintain confidentiality applies. In that event MKmetric shall do everything within its powers to safeguard the interests of the client.
2. MKmetric shall treat confidential information obtained from the client, in whatever form, as confidential. MKmetric shall require permission from the client for external use of this confidential information and/or recognisable persons associated with such information.
3. Paragraph 1 and 2 of article 3 apply vice versa as well to the client.
ARTICLE 4: Rights to results, use of knowledge, etc.
1. For the agreed period the client shall have the right within the scope of the commission to use all knowledge and information which is specifically associated with that commission, in so far as MKmetric does not have a duty of confidentiality to third parties. The costs associated with this right of use shall be paid to MKm.
2. MKmetric shall have the right to use the new specific knowledge and information obtained by undertaking the commission both during and after the period during which MKmetric has a duty of confidentiality pursuant to Article 3.
3. MKmetric shall have the right to use for itself, or allow to be used for or by third parties:
a) the knowledge and experience of MKmetric at the time the commission was accepted;
b) the new specific knowledge and information obtained by undertaking the commission, even outside the scope of the commission;
c) algorithms, programs, web applications and experimental methods resulting from undertaking the commission;
d) to publish results in aggregate form or if the client published the results already or agrees to the publication or the client is a public body which is obliged to publish.
4. MKmetric shall retain the copyright to all reports, drawings and other products resulting from the work commissioned.
5. Any reports issued may only be published by the client in full and word-for-word. Publication in any other form shall only be permitted with the written consent of MKm. Publication shall also be deemed to include disclosure to third parties.
6. The application of the results of the commission for making claims, undertaking legal actions and for advertising, as well as the use of the name of MKm, in any context whatsoever, shall, even in the context of publishing reports as referred to in Article 4, paragraph 5, only be permitted after MKmetric has given specific permission in writing.
ARTICLE 5: Prices
1. In the event that an offer contains a "fixed price" such price shall be deemed to be the agreed price. If the offer does not contain a "fixed price" it shall be deemed to have been agreed between the client and MKmetric that the amount to be paid shall be calculated after completion of the work on the basis of the rates and methods normally adopted by MKmetric or the rates and methods agreed with the client. In the latter case, if a "price indication" is included in the offer this amount shall be deemed to be an estimate of the costs. No prices quoted by MKmetric in its offers shall be binding.
2. For orders to a value of or exceeding Euro 5000,- and expected to run for three months or longer, MKmetric may, at the request of the client, set a limit. This shall automatically relieve MKmetric from any obligation to continue the work if the amount to be spent on undertaking the commission would exceed the agreed limit.
3. In the event that the offer does not contain a "fixed price" and the commission involves a sum in excess of Euro 55, 80 MKmetric shall, if requested by the client when placing the order, itemise the invoice in terms of person-hours and rates and direct material costs.
4. Unless otherwise stated all amounts specified by MKmetric in the offer and referred to in these General Conditions are excluding value added tax (turnover tax). MKmetric reserves the right to divide the contract price into a number of instalments.
ARTICLE 6: Period
1. The period agreed between MKmetric and the client within which the commission shall be completed shall always be deemed to be approximate. The period shall commence on the written order confirmation by MKm, but not until MKmetric has received the information and materials required for the commission from the client. If at the time of the order the client owes MKmetric any payments under the agreement concerned or any other agreement the period shall only commence from the date on which MKmetric receives such payment.
2. Failure to complete the commission within the stated period, for whatever reason, shall never give the client a right to damages, dissolution of the agreement or non-compliance with any obligation towards MKmetric further to the current or any other agreement.
3. After expiration of the period, including any suspension due to force majeure, the client shall be entitled to stipulate a new reasonable period for performance by MKm; if this period is not observed the client shall be entitled to dissolve that part of the agreement which has not been performed, in which event neither party shall be entitled to damages. The client shall then pay that part of the agreement which was performed, pro rata, to MKm.
4. MKmetric reserves the right to undertake the commission in stages in which event it shall be deemed to be carried out under separate agreements to which these General Conditions shall apply mutatis mutandis.
ARTICLE 7: Force majeure
1. In the event of force majeure the performance of the agreement shall be suspended until the force majeure ceases, unless MKmetric informs the client in writing within 90 days from the commencement of such force majeure that it wishes to dissolve that part of the agreement which has not yet been performed, without any obligation to pay damages.
2. The conditions under which MKmetric may claim force majeure include: failure of third parties to supply for whatever reason, strikes or lock-outs, political or economic boycotts, staff illness or death, fire, business interruption, riots, measures resulting from other government measures, interrupted energy supply or telecommunication lines, business equipment damage and any other event of any nature beyond the control of MKmetric which may prevent or delay performance of the agreement.
ARTICLE 8: Liability
1. MKmetric is obliged to undertake the requisite efforts to perform this agreement. Neither MKmetric nor goods and services nor persons used by MKmetric to perform the agreement shall incur any liability in respect of any damage suffered by the client during the application or use of the results of the activities of MKm, unless MKmetric is guilty of intent or gross negligence in which event such liability shall be limited to the amount of the commission.
2. In so far as this liability extends to goods and services obtained by MKmetric from third parties the liability of MKmetric shall also be limited to whatever such suppliers owe MKmetric and which MKmetric can actually recover from the supplier.
3. The client shall indemnify MKmetric and/or goods and services and/or persons used by MKmetric to perform the agreement from any claims by third parties regarding damage suffered by these third parties arising from the application or use of the results of the activities of MKmetric by the client or another person to whom the client made such results available, unless MKmetric is guilty of intent or gross negligence.
4. In the event that the client fails to meet any obligation towards MKm, including failure to pay in time, the liability of MKmetric shall lapse.
5. In the event that MKmetric is liable for damage due to breach of the duty of confidentiality referred to in Article 3, the limits defined in Articles 8.1 through 8.4 shall also apply.
ARTICLE 9: Payment
1. All payments shall be received by MKmetric within two weeks of the invoice date, "net cash" and without possibility of set-off or deferment, otherwise the client shall automatically be in default without any notice of default being required.
2. In the event that the client does not pay within the agreed period he shall be charged interest at the statutory rate from the date on which payment should have been made.
3. The client shall be obliged to pay all extra-judicial costs of collection which shall be deemed to be at least 10% of the amount invoiced. In the event that recourse must be taken to the courts for collection the client shall also be obliged to pay all costs incurred without prejudice to the right of MKmetric to interest, costs and full compensation of any damage.
4. MKmetric shall be entitled to withhold goods, monies and documents, the latter in the widest possible sense of the word, from anyone claiming their release, at the expense and risk of the client and/or owner, until all claims due to MKmetric have been fulfilled.
5. All goods, monies and documents which MKmetric has or may obtain of whatever nature and for whatever purpose shall serve as security for any claims which MKmetric has or may acquire against the client or owner.
6. If the claim(s) are not paid the security shall be sold in the manner prescribed by the law or, if so agreed, by private treaty.
7. If requested MKmetric may at its sole discretion allow said security to be replaced by another, equivalent security.
8. The client shall never be able to invoke the fact that he was allowed to defer payment whether explicitly or not, for previous commissions.
ARTICLE 10: Default
1. If the client fails to fulfil any of his obligations towards MKmetric in full or in time or in the event of his being declared bankrupt, applying for suspension of payments, liquidation, being placed in the hands of an administrator or similar, he shall be deemed to be in default without any further notice of default being required and MKmetric shall be entitled to payment of interest, costs and full damages, or at its discretion, to dissolve the agreement in whole or in part or to suspend its performance without recourse to judicial review.
ARTICLE 11: Security
1. MKmetric shall at all times, even when it has started or completed a commission, be entitled to require the client to provide sufficient security to satisfy MKmetric that he shall meet all his obligations towards MKm, before commencing or continuing performance.
ARTICLE 12: Disputes
1. All disputes arising from agreements to which MKmetric is party shall in first instance be brought before the district court at Karlsruhe, Germany, unless MKmetric prefers to bring the case before the court which is competent in accordance with the general rules of jurisdiction.
2. All agreements to which MKmetric is party shall be subject to German law.