General Terms and Conditions of zweigrad Design Development

Unless expressly agreed otherwise, the following provisions shall apply for all orders executed by zweigrad.
No general terms and conditions of the Customer which contradict to or deviate from the following provisions shall be recognised unless zweigrad expressly consents in writing to their application. The general terms and conditions of zweigrad shall apply even if zweigrad does not expressly object to terms and conditions of the Customer or executes the order without reservation in the knowledge of such conditions.

1. Scope of performance
1.1 The Customer commissions zweigrad with the development of a design for the project specified in the respective offer.
1.2 The Parties agree that the development services by zweigrad are of creative nature and do not include any engineering work, in particular not:
• Calculation and dimensioning of components or constructions
• Forecasting properties of, stresses in or failure of materials, components and designs of any kind
• Detailed production engineering
The Customer shall have sole responsibility for such tasks.
1.3 The Customer is under obligation to provide zweigrad in good time with the information and documentation necessary for the execution of the order. The Customer shall be liable for ensuring that it is entitled to use the references with which the designer has been provided and shall indemnify the latter against claims for damages by third parties.
1.4 zweigrad shall have freedom of design for the order. Refunds relating to the creative design are excluded.

2. Deadlines/Default
2.1 Unless expressly agreed otherwise, offers by zweigrad are valid for two months from receipt by the Customer.
2.2 Contracts with zweigrad are concluded when zweigrad accepts in writing orders/purchase orders received, zweigrad confirms in writing declarations of acceptance received or the goods or services ordered by the Customer have been delivered or rendered. This shall apply analogously for changes or amendments to contracts.
2.3 Agreed periods shall commence upon the date of the written declaration of acceptance or confirmation by zweigrad, however not prior to receipt of any outstanding payments.
2.4 In the event or changes or amendments to contracts the period set out in clause 2.3 shall automatically be extended accordingly.

3. Presentation/Acceptance
3.1 For the inspection of the contractual products supplied, the provisions of Sec. 377 of the German Commercial Code [Handelsgesetzbuch – HGB] shall apply mutatis mutandis. In particular, the Customer shall also check all final drawings, dimension drawings, models, data and similar with regard to dimensions, tolerances etc., factual accuracy and feasibility in terms of production before these documents are used for production. zweigrad shall not be liable for contractual products released by the Customer.
3.2 Provided zweigrad’s performance is not rejected within seven working days of its receipt by the Customer, it shall be deemed to have been accepted.
3.3 If for justified reason the Customer rejects the performance as not being in compliance with the contract, zweigrad will make the required rectifications without delay and in doing so shall take into account the specifications of the Customer.

4. Right to Use, Ownership of Pieces of Work
4.1 The design and all drafts supplied are the personal intellectual creations of zweigrad.
4.2 Proposals and instructions of the Customer shall not give rise to a joint copyright and shall not affect the remuneration.
4.3 Until full payment of all claims arising from the business relationship with zweigrad, all rights to the contractual products shall remain with zweigrad; this shall particularly apply to copyrights, industrial design rights, utility patterns and patents.
4.4 Only upon full payment of the agreed total remuneration zweigrad grants the Customer an exclusive right, unrestricted in terms of territory and time, to use the selected draft for the project specified in the respective offer for its own purposes.
4.5 User rights to concept or design alternatives or to other working results shall not be transferred. If the Customer wishes to use one of the other drafts or to use the selected draft for another project, this requires the conclusion of an additional agreement on use.
4.6 Should the Customer terminate the cooperation prematurely and intend nevertheless to use zweigrad drafts, it shall consult zweigrad in order to conclude an independent agreement of use which provides for additional remuneration.
4.7 Unless expressly agreed otherwise, all demonstration material (drafts, finished drawings, models, etc.) shall also remain the property of zweigrad.
4.8 In the event of damage caused by the Customer or the loss of demonstration materials, the Customer shall reimburse the costs required for restoring such materials. This shall not affect the assertion of further-reaching damages.

5. Remuneration
5.1 The amount of the remuneration entitlement shall be based on the respective offer and/or the order confirmation and any changes to remuneration which may be agreed during the term of the contract. Such amount is net and payable with VAT at the applicable statutory rate.
5.2 Ancillary payments such as travel, material and transport costs shall be calculated separately. Time spent travelling or in meetings will be invoiced in line with agreed hourly rates. Invoicing shall take place after delivery/acceptance of the individual phases in accordance with the offer.
5.3 Should modifications arise in the course of the project which are not the result of defects for which zweigrad is responsible, these will be calculated separately. The same applies for further drafts or other additional services.
5.4 Should the implementation of the order be delayed for reasons for which the Customer is responsible, zweigrad may demand an appropriate increase in remuneration. In the event of intent or gross negligence, zweigrad reserves the right to assert claims for damages.
5.5 Remuneration shall fall due within fourteen days of invoicing. For work rendered and accepted within the framework of the self-contained partial performance units (“Phases”) pursuant to the agreement, the respective partial remuneration will be invoiced accordingly.
5.6 zweigrad is entitled to demand partial payments and advance payments in line with the work rendered. Expenses and costs shall fall due upon invoicing.
5.7 Due invoices are payable without deductions.

6. Third-Party Services
6.1 zweigrad is entitled to make use of third-party services in fulfilling orders.
6.2 Should it be necessary to make use of such services, zweigrad will – having consulted the Customer – order these on behalf and for the account of the Customer. The Customer is obliged to issue zweigrad with any power of attorney necessary for this.
6.3 If in individual cases contracts on third-party services are concluded on behalf and for account of zweigrad, the Customer undertakes to release zweigrad inter se from all obligations arising from the conclusion of such contracts, in particular the obligation to pay the price for the third-party services.

7. Handing Over of Data
7.1 Unless expressly agreed otherwise, zweigrad is under no obligation to hand over data carriers, files or data.
7.2 If zweigrad has provided the Customer with data carriers, files or data, these may be modified only with zweigrad’s consent.

7.3 The Customer shall bear the risk and costs of the transport/transmission of data carriers, files and data (online and offline).
7.4 zweigrad shall not be liable for defects in data carriers, files or data except in the event of intent or gross negligence. zweigrad’s liability is excluded with regard to defects in data carriers, files or data which occur when the data are imported into the Customer’s system. In particular, the Customer shall be responsible for checking the data carriers, files or data using a virus scanner prior to importing such data.

8. Specimens / Right to be Named
8.1 zweigrad is entitled to receive pictures of the objects produced on the basis of its designs, as well as to be given a free specimen, provided the Customer does not incur costs in excess of €1,000 for providing such a specimen. Should the Customer incur costs in excess of this amount zweigrad will pay the difference provided it insists on a specimen in that case.
8.2 zweigrad is entitled to ten samples of the advertising material which is produced for the product designed by zweigrad, provided this does not involve costs in excess of €100 for the Customer. zweigrad is entitled to reproduce such advertising materials or copies thereof for its own advertising purposes, provided it names the Customer when doing so.
8.3 zweigrad is also entitled to refer to its contribution to the product in publications and use pictures of the product, provided the Customer is named in such publications.
8.4 Moreover, zweigrad is entitled to be named as a designer in publications and documentation about the product. A reference, as indicated by zweigrad, to zweigrad as originator is to be made on such products to the extent technically possible.

9. Warranty
9.1 zweigrad warrants to the best of its knowledge that the design produced according to the order is its own intellectual creation and was not modelled on third-party designs. Also to the best of its knowledge, zweigrad warrants that based on its own information the performance it has rendered does not infringe any third-party rights.
9.2 However, it is under no obligation to research the matter. In particular, it is not obliged to research potential nationally or internationally registered third
party rights.
9.3 zweigrad gives no guarantee for the eligibility of the product for registration, nor for its eligibility for protection as regards to patents, utility patterns or designs or for its admissibility under unfair competition or trademark law.
9.4 zweigrad’s warranty shall lapse if the performance rendered or products delivered are modified or treated inappropriately.
9.5 The Customer releases zweigrad from third-party claims in cases where zweigrad has acted on the express instructions of the Customer.
9.6 In the event of obvious defects in models or performance, zweigrad is obliged to rectify such defects or provide replacements upon payment of a reasonable amount taking into account the defect, and shall eliminate defects within a reasonable period.
9.7 Should it not be possible to rectify defects within a reasonable period, zweigrad will offer an alternative solution. Any further-reaching claims due to defects are excluded, regardless of their legal grounds.
9.8 The warranty period shall be for a maximum of one year after acceptance.

10. Liability
10.1 zweigrad is liable for damages only if
(a) liability is mandatory under the applicable legislation;
(b) zweigrad culpably breaches a material contractual obligation, (cardinal obligation) or if
(c) the damage results from gross negligence or intent on the part of zweigrad.
10.2 In all other cases the liability of zweigrad for damages is excluded regardless of the legal basis. In particular, zweigrad shall not be liable for indirect damages, lost profit or other damages to the Customer’s assets.
10.3 Any liability is restricted to the value of the order, to the extent legally possible.
10.4 The exclusion and the limitation of liability in line with the previous paragraphs also shall apply with regard to the personal liability of the staff or vicarious agents of zweigrad.

11. Confidentiality
11.1 Without prejudice to the provisions contained in clause 8, both Parties shall treat confidential all documentation and information which they receive in the course of fulfilment of the contract.
11.2 This obligation continues even after termination of the contract and shall be imposed on any third parties to whom documentation and information may be passed on in line with contractual agreements.

12. Data Protection
12.1 zweigrad is entitled to store data relating to the Customer electronically and to process and use such data for business purposes in line with the statutory regulations.
12.2 We herewith notify the client and he agrees, that all data of this business connection will be recorded, retained, handled and used, and that we are allowed to circulate the data to involved third parties/business companies. This agreement can be cancelled/recalled at anytime.

13. Assignment/Transfer/Retention
13.1 The Customer may not transfer rights under this contract to third parties without the written consent of zweigrad.
13.2 In the event of any claims the Customer may not refuse payments incumbent on it, nor retain or set off such payments unless the Customer’s claims either have not been contested by zweigrad or have fallen due or have become res judicata .

14. Place of Performance/Transfer of Risk/Safekeeping
14.1 Place of performance for zweigrad supplies and services is the business premises of zweigrad.
14.2 Sending or returning of contractual goods and models shall take place at the risk of and for the account of the Customer.
14.3 Should zweigrad hold items in safekeeping for the Customer, this shall take place at the cost and risk of the latter. Unless agreed otherwise, the Customer is obliged to pay zweigrad the amount customary for such storage by a commercial warehousekeeper.

15. Written Form
No oral subsidiary agreements exist. Changes or amendments shall be valid only when made in writing. This also applies the contracting-out of this written form requirement.
Communications by fax or e-mail shall qualify as written.

16. Severability
Should any provision of a contract on supply and service – of which these conditions form an integral part – be or become invalid, this shall not affect the validity of the remaining provisions.

17. Place of Jurisdiction / Governing Law
17.1 As far as legally admissible, the place of jurisdiction for all disputes between the Parties, regardless of their legal basis, shall be Hamburg. zweigrad is, however, entitled to sue the Customer at the court competent for the latter’s habitual abode.
17.2 The contractual relations between the Parties shall be subject to German law, with the exclusion of the provisions of conflict of law set out in the Introductory Law to the German Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuch – EGBGB]. Application of the UN Sales Convention is also expressly excluded.

As per: 16 October 2012