General Terms and Conditions (AGB)
Genesis Design GmbH
Münchner Straße 87a, D-85221 Dachau
§ 1 Scope of application
(1) Genesis Design GmbH („Genesis Design“) provides services to its customers („clients“) exclusively on the basis of the following General Terms and Conditions („GTC“). Genesis Design shall not recognise any terms and conditions of the client that conflict with or deviate from these GTC unless it has expressly agreed to them in writing. The GTC shall also apply if Genesis Design provides the agreed services without reservation in the knowledge that the client’s terms and conditions conflict with or deviate from these GTC.
(2) The GTC shall only apply to entrepreneurs within the meaning of Section 310 (1) BGB and only if nothing to the contrary has been agreed in individual cases.
§ 2 Conclusion of the contract
(1) Offers and cost estimates from Genesis Design are always subject to change.
(2) Orders placed by the client (including verbally) are binding. A contract is also concluded if Genesis Design begins to fulfil the order even though agreement has not yet been reached on all points of the contract, if the client is aware of this and does not object.
§ 3 Principles of co-operation
(1) The client is obliged to co-operate. In particular, he shall provide Genesis Design with all information, documents and materials required for the execution of the order at the agreed times.
(2) The client warrants that it is authorised to use all information, documents and materials provided to Genesis Design and shall indemnify Genesis Design against all claims for compensation by third parties (including legal fees and court costs) arising from any non-authorisation.
(3) The client shall issue the necessary approvals in good time so that Genesis Design is able to carry out all work with which it is commissioned smoothly and on time without additional costs and loss of quality.
(4) If the execution of the order is delayed for reasons for which the client is responsible, Genesis Design may demand an appropriate increase in remuneration and assert claims for damages. The assertion of further damages caused by delay shall remain unaffected.
§ 4 Performance period and type of performance
(1) Agreed performance deadlines are only binding for Genesis Design if the client duly fulfils his obligations to cooperate (e.g. procurement of documents, granting of approvals, adherence to deadlines).
(2) Genesis Design shall not be responsible for delays in performance due to force majeure (e.g. strike, general disruptions in telecommunications, supply bottlenecks) and due to circumstances within the client’s sphere of responsibility. Completion and delivery deadlines shall be extended accordingly.
(3) Genesis Design is not obliged to deliver the service results to the client as open, editable files. If the client wishes to receive such files, this must be agreed and paid for separately.
(4) The client shall bear the risk and costs of transporting data carriers, files and data online and offline.
§ 5 Freedom of design; subsequent amendments
(1) Genesis Design shall have freedom of design within the scope of an order placed. Complaints regarding the aesthetic-artistic design are excluded.
(2) If the client subsequently wishes to make changes to the design creation or the schedule during the execution of the contract, he shall reimburse Genesis Design for any resulting additional expenditure on a time basis. Genesis Design shall retain the full original claim to remuneration for work already commenced.
§ 6 Granting of rights of use
(1) All drafts, developments, elaborations, drawings and other results of the contractual services of Genesis Design are creative added value and are subject to copyright protection. The parties agree that the provisions of the Copyright Act shall apply to the results of the services created by Genesis within the framework of this contract. They may only be reproduced and utilised with the consent of Genesis Design.
(2) The scope of the granting of rights shall be based on the agreement reached between the parties in the individual case. Unless expressly agreed otherwise, the rights of use shall be granted as simple, temporally and spatially unlimited, non-sublicensable and non-transferable rights.
(3) The granting of rights of use relates only to the final design used by the customer and other final performance results. Development, intermediate and final stages, documents for documentation and, if applicable, alternatively developed design versions are only covered by the granting of rights if this has been expressly agreed or if the purpose of the contract pursued by the parties requires this. The customer undertakes to return or destroy/delete all non-final and/or alternative versions of the design developed as part of the order after completion of the project and not to use them any further. The right is not granted to modify the final design in the original or in reproduction without the express consent of Genesis or to transfer it to products other than those covered by the purpose of the contract or other objects unrelated to the project (e.g. model making, visualisation).
(4) If the use of the designs and other performance results developed by Genesis involves the exercise of a type of use unknown at the time of conclusion of the contract in accordance with Section 31a (1) UrhG, the client shall notify Genesis of the intended commencement of this use at the last known address of Genesis; Genesis may revoke the granting of the rights of use required for the exercise of this type of use within a period of three months after dispatch of the notification. Otherwise, the granting of the right of use is irrevocable.
(5) If the design developed by Genesis and other performance results are not utilised by the customer within 3 years of acceptance, Genesis Design may grant the exclusively granted rights of use to third parties for other use.
(6) Data generated by Genesis as part of the design development may be used by the customer exclusively for the manufacture of moulds and tools for the manufacture of the contractual product developed by Genesis, unless otherwise agreed in individual cases.
(7) The client is also not entitled to register the final design as a property right (patent, utility model, design or trade mark). Any industrial property rights registered by Genesis, whether or not to comply with deadlines, shall be transferred to the client upon granting of the rights in accordance with paragraph 1.
(8) The contractually agreed rights of use shall only be transferred to the client after completion of the project and full payment of the contractually agreed remuneration (plus expenses and costs). In the event of premature termination of the contract, the rights of use shall remain with Genesis Design.
(9) Any granting of rights of use to the client that deviates from the above provisions must be expressly agreed and remunerated.
(10) If Genesis Design has already published the final design before conclusion of the contract, there is no obligation to delete or remove it, even if exclusive rights of use are granted to the client.
(11) Genesis shall enter into valid and sufficient agreements with its employees and shall take all necessary measures to ensure the transfer of the work results created by this group of persons to Genesis. In particular, Genesis shall make unlimited use of the patentable and/or utility model-capable inventions created by its employees.
§ 7 Ownership of performance results, obligation to return
(1) Only rights of use in accordance with § 6 shall be granted to the results of the services, but no ownership rights shall be transferred.
(2) Any originals of final designs in physical or digital form must be returned undamaged to Genesis Design, retransferred or destroyed at the discretion of Genesis Design as soon as the client no longer needs them.
§ 8 Name rights, free copy
(1) Genesis Design may request that the products for which the final design was developed be labelled with its name, logo or other customary commercial designations. It must agree the specific form with the client.
(2) Genesis Design shall also be entitled to use the name and logo of the client as a reference in its advertising in a manner customary in the industry.
(3) The client shall provide Genesis Design with a free specimen copy of the commercially manufactured products that embody the final design. If the material costs for this exceed an amount of EUR 500.00, the client shall provide Genesis Design with the specimen copy at the price of the work less EUR 500.00.
§ 9 Remuneration and terms of payment
(1) The scope and composition of the remuneration owed shall be based on the agreement reached between the parties in each individual case. Genesis Design is entitled to invoice according to service phases and to demand reasonable advance payments. Amounts offered by Genesis Design are net amounts, which are to be paid plus the statutory value added tax.
(2) If a licence fee is payable, this fee refers to the net trade selling price. The trade selling price (or trade selling price) is the price at which a manufacturer or supplier sells its products to retailers.
(2) Expenses for incidental technical costs such as for special materials, the production of photos, models, prototypes etc. shall be reimbursed separately.
(3) Costs and expenses for journeys undertaken in connection with the order and agreed with the client shall be reimbursed by the client if the journey (shortest route and one-way) is made to a location more than 300 km away. Travelling days shall be reimbursed in accordance with the agreed daily fee, accommodation costs in the proven amount and expenses in accordance with the maximum tax rates. Rail travel is reimbursed at the cost of a second class ticket, air travel at the cost of a business class ticket and car travel at €0.8 for each kilometre travelled.
(4) Invoices are due for payment within 14 days of receipt.
§ 10 Liability
(1) Genesis Design shall ensure to the best of its knowledge and belief that the final design does not infringe the property rights of third parties or competition law. No warranty beyond this is assumed.
(2) Genesis Design shall not be liable for the protectability of the final design and/or the risk of technical manufacturability, functional safety or the economic usability of a product manufactured on the basis of the design. Furthermore, Genesis Design shall not be liable for defects in data carriers, files and data that arise during data transport to the client’s system or its authorised representative, except in the case of intent and gross negligence.
§ 11 Cancellation
(1) The client may terminate the contract at any time until the design services have been provided in full (e.g. if the project is cancelled) without stating reasons.
(2) In addition, both parties may terminate the contract extraordinarily at any time for good cause.
(3) Cancellations must be made in writing (including scanned and/or by e-mail) to be effective.
(4) In the event of termination, or in the event of project cancellation or insolvency, no rights of use shall be transferred to the client, neither to partial results nor to final results of the services already provided. All service results in the possession of the client must be returned to Genesis Design immediately or, if they are available to the client in digital form, destroyed/deleted and the destruction/deletion must be confirmed to Genesis Design in writing.
§ 12 Cancellation costs
(1) In the event of termination in accordance with § 12(1), Genesis Design shall receive at its own discretion
(a) the pro rata remuneration for services rendered up to the date of cancellation plus compensation for expenses incurred up to that date, or
(b) a lump sum of
- 25% of the agreed remuneration if the cancellation is made at least 4 weeks before the agreed start of the project, unless the client proves that Genesis Design has a lower claim, taking into account other income made possible by the cancellation and saved expenses;
- 50% of the agreed remuneration if the cancellation takes place after the aforementioned date, unless the client proves that Genesis Design has a lower claim, taking into account other income made possible by the cancellation and saved expenses.
§ 13 Confidentiality, disclosure and cancellation obligations
(1) The parties shall treat all information of the other party which comes to their knowledge in the course of their co-operation and which is not intended for disclosure to third parties as strictly confidential beyond the end of the contract and shall use it only for contractual purposes.
(2) Documents and information of the other party that are not required for contractual purposes after the end of the contract shall be returned to the other party or destroyed/deleted at the expense and discretion of the other party.
§ 14 Customer protection – Competition
(1) The client shall not employ or directly commission employees or former employees of Genesis Design. This shall apply for the duration of the contractual relationship and for a period of three years after the end of the co-operation (date of the last invoice).
(2) Genesis Design is not subject to any restriction whatsoever in the processing of identical or similar projects for different clients.
§ 15 Final provisions
(1) There are no verbal collateral agreements. Amendments or additions to the respective agreements made must be made in writing to be effective.
(2) The contractual relationship is subject exclusively to the law of the Federal Republic of Germany.
(3) The place of fulfilment and jurisdiction for all disputes arising from the contractual relationship is Munich.