Standard terms and conditions of Neue Materialien Fürth GmbH (NMF)
(as at April 2005)
Neue Materialien Fürth GmbH (hereinafter referred to as NMF) specializes in research and development in the fields of materials science and technology, with an emphasis on process technology. Toward this end, NMF carries out research and development projects on behalf of public and private sector customers for purposes of supporting innovation and technology transfer. The terms and conditions hereunder shall govern the tasks, requirements and responsibilities arising from the realization of such projects insofar as a work order has been placed for research and development services.1 Scope and realization of deliverables
The deliverables and tasks described in the project proposal and quotation shall constitute the overall objective of any work order that is placed.
Upon placement of such work order, the scope of the deliverables shall be governed by the project proposal and quotation and shall become the subject matter of the contract. If any condition stated in any order that is placed differs from any condition stated in the project proposal and quotation to which such order pertains, such difference shall only become contractually valid and binding upon express written confirmation that such difference has been accepted.
2 Delivery time
The delivery time shall begin upon the date specified in the order confirmation.
If NMF realizes that the specified delivery time is insufficient, NMF shall submit to the customer a written request to extend such delivery time by mutual agreement of NMF and the customer. Such request shall indicate the reasons for such extension and shall be accompanied by substantiating documentation.
3 Compensation
Insofar as a fixed price is not expressly agreed upon when an order is placed, the price shall be determined on a time and material basis, providing that the resulting amount does not exceed the maximum agreed cost.
Where the parties agree that the deliverables are to be billed on a time and materials basis, NMF shall notify the customer in a timely manner if it appears that the desired results cannot be achieved for the agreed maximum cost or less. In such case, NMF shall recommend a further course of action.
4 Terms of payment
Payment of the contractual price shall be due immediately upon receipt of the invoice. The customer shall be deemed to have defaulted on payment upon receipt of a dunning letter for any past due payment, and in the absence of a dunning letter, the customer shall be deemed to have defaulted on payment 14 days following the date upon which payment is due. Payment is to be effected directly to NMF in all cases.
A deduction from the billed amount shall only be allowable if such deduction is uncontested or has been adjudicated in a court of law.
NMF shall be entitled to charge interest on past due payments. Such interest shall amount to 4% more than the currently applicable Deutsche Bundesbank discount rate, plus any costs or fees. NMF shall be entitled to charge a higher or lower interest rate insofar as NMF can substantiate a financial burden that requires a higher interest rate or insofar as the customer can substantiate a lesser financial burden requiring a lower interest rate.
5 Work product, partial delivery, place of performance
Insofar as not otherwise specified in the project proposal and quotation, the customer shall receive the work product in the form of a report. NMF shall be entitled at its discretion to supply only part of the work product.
The place of performance for NMF deliverables shall be Fürth, Germany.
6 Right to use work product
The customer shall be granted a non-exclusive right of use to any industrial property rights, copyright, and know-how that arise from fulfillment of the order.
At the customer’s behest, the customer shall be granted the aforementioned right of use for any technical or other application that pertains to the customer’s work order on an exclusive basis, with the exception of know-how to which any exclusive right is not attributable. In the case of such exclusive right, NMF shall be entitled to require payment. NMF shall be entitled to non-remunerated, non-exclusive right of use to industrial property rights and copyright for such purposes as are allowed by law.
If existing NMF know-know is used to fulfill the order, and if the customer requires such know-how in order to use any contractual deliverable, the customer shall be granted, against charge, the non-exclusive right of use to copyright and industrial property rights. Such right shall be subject to a separate agreement where necessary.
7 Retention of title
The customer shall become the owner of and acquire the right to use the work product only upon full payment of the agreed compensation. Title rightfully belonging to NMF shall be neither assigned as security nor pledged.
If NMF’s title is extinguished by a combination or consolidation of any kind, it is hereby agreed that the customer’s title shall be assigned to NMF in proportion to the value of the relevant object as a whole (invoice value).
In the event such title is resold, the customer shall assign all right of resale in rem to NMF.
8 Warranty
NMF shall not be held liable if the desired results are not achieved. NMF warrants that it shall exercise due diligence and professional expertise and that it shall observe generally accepted industry standards. The warranty shall be valid for a period of six months following delivery of the work product to the customer.
9 Liability
The liability of NMF, its legally authorized representative, and any NMF agent for any claim that arises from any contractual breach shall be limited to loss or damage that is attributable to gross negligence on the part of NMF. Insofar as such loss or damage arises from slight negligence, NMF’s liability shall be constituted by the value of the work order and shall not exceed € 10,000.
10 Confidentiality
During the term of the contract and following its expiration or cancellation, NMF shall refrain from disclosing any of the customer’s technical or business information which are declared to be confidential to any third party whatsoever unless such information is generally known or unless the customer has granted express written permission for NMF to disclose such information. The same obligation toward the customer shall apply to NMF.
11 Publications
NMF and its personnel shall be entitled to publish scientific writings in regard to the work product arising from any work order providing that such publication pertains solely to basic scientific knowledge. Such publication shall be realized in consultation with the customer and with his consent.
The customer shall be entitled to publish writings in regard to the work product of any order solely with the prior written consent of NMF and providing that the originator or author of such work product is named in such publication. Any consent to publish that is granted shall ensure that such publication is not detrimental to any work such as a Ph.D. dissertation insofar as such work product or any part thereof is a constituent of such work.
12 Advertising and publicity
The customer shall be entitled to use the whole or partial work product arising from any order, or a precis of such work product, for advertising and/or publicity purposes providing that NMF and/or any relevant NMF contractor is named in such advertising or publicity and insofar as NMF consents to such use.
13 Contract cancellation
The customer and NMF shall be entitled severally to notify the other party of their intention to cancel the contract one month from the last day of any calendar month providing that no significant progress has been achieved during six months since the beginning of the contractual period.
Within four weeks from the date upon which cancellation of the contract takes effect, NMF shall submit to the customer the entirety of any work product achieved thus far. The customer shall compensate NMF for any cost incurred by NMF up to the date upon which the contract was cancelled.
14 Miscellaneous provisions
Any changes in or amendments to the terms and conditions hereunder shall be effected in a writing. The terms and conditions hereunder shall be governed by and construed solely in accordance with the laws of the Federal Republic of Germany.
Neue Materialien Fürth GmbH receives institutional funding from:
