(Projekter Industrial Design, Lienhard und Lingott GbR (PID), version dated 2022-08-08)
These terms apply to all quotations, cost estimates, orders and contracts relating to work with PID. Any terms that differ from or go beyond these conditions, including in particular the Client's own terms and conditions, are only binding if PID has expressly confirmed them in writing in advance. Countersigning the contract or quotation constitutes acceptance of these terms.
The Client shall ensure that PID is given immediate and prompt access to all documents, information, samples, models, prototypes, registered designs and utility models, patent documents, drawings and data relating to the project, as well as information on manufacturing, distribution and sales and on all other requirements within the Client's sphere concerning the product to be designed. The Client provides these to PID free of charge and, unless otherwise agreed, without PID assuming any duty of care, safekeeping or return.
PID is not obliged to check the accuracy and completeness of the documents and information provided beyond a general plausibility check, unless such a duty to check has been agreed in writing.
PID undertakes to keep confidential, for an unlimited period, all information and documents made available to it in connection with the contract or quotation that are marked as confidential or are otherwise clearly recognisable as trade or business secrets of the Client, and, unless required to fulfil the purpose of the contract, neither to record, disclose nor exploit them.
By means of appropriate contractual agreements with its employees and agents, PID shall ensure that they, too, refrain for an unlimited period from any exploitation, disclosure or unauthorised recording of such trade and business secrets.
The Client is bound by corresponding obligations with regard to PID's trade and business secrets. This applies in particular to ideas and designs disclosed during the development phase.
Where binding deadlines for project completion have been set, the following applies:
Any delays caused by a lack of cooperation on the part of the Client shall be deducted from the deadline.
If exceeding the delivery date is necessary for design or development reasons, PID is entitled to exceed the delivery date by 30 days. Only after this 30-day period has expired may the Client place PID in default.
If failure to meet the deadline is due to force majeure occurring or becoming apparent only after the contract was concluded, the deadline shall be extended, where the disruption is temporary, until it ceases, but by no more than 6 months. The same applies in the event of strikes, lockouts, missing import or export licences, unforeseeable operational disruptions or other events for which PID is not responsible. This also applies if such circumstances affect PID's suppliers.
The Client makes decisions on technical and commercial matters on its own responsibility.
As a rule, separate project phases are defined. Each project phase is accepted separately. The Client is obliged to accept without delay. The statutory provisions apply in addition. PID's obligation to perform subsequent project phases only becomes due once the previous phase has been accepted and a reasonable performance period, normally at least 30 days, has elapsed. The defences under Section 273 of the German Civil Code (BGB) (right of retention) and Section 320 BGB (defence of unperformed contract) are excluded to the detriment of the Client.
Acceptance is deemed to have been given tacitly if no written objection to the work is raised within 10 days of its submission.
Once a project phase has been accepted, its result becomes the binding basis for all further work.
Acceptance may not be refused on grounds of taste (dislike). In this respect, the Client is referred to its right of termination.
The Client may terminate the contract at any time until the work has been fully performed.
The Client may also terminate on grounds of taste.
If the Client terminates, PID is entitled to claim the agreed fee for the project phases already started or completed plus 30% of the total agreed fee pro rata for the phases not yet started or, where fees are agreed per project phase, 30% of the total for the project phases not yet started.
In the event of delayed acceptance, the Client is liable to PID for any resulting damage. PID is entitled to terminate the contract at any time if the Client fails to carry out the required acceptance despite a request in text form setting a reasonable deadline, unless there are more than insignificant defects preventing acceptance, for which the Client bears the burden of proof in the event of a dispute. In this case, defects must be set out at least in text form in a technically and factually accurate and verifiable manner.
Project phases that have already started must be paid for in full in accordance with the contract.
PID notifies the Client of the completion of each project phase. Beforehand, PID is obliged to give the Client the opportunity to review the completed phase.
If the Client terminates, no rights of use whatsoever pass to the Client unless a separate agreement is reached on this.
Due to the creative freedom granted to PID and the artistic individuality associated with it, no rights to rectification or warranty claims can arise on grounds of taste.
Design data, drawings and similar materials used for printing, 3D printing, mould making or production must be checked and approved by the Client. Changes and adjustments to the data must be made before approval by the Client and before the data is passed on to subsequent processes.
Changes and corrections to tools, products and designs that have already been produced, made after approval by the Client or supplier, are not part of PID's quotations and are calculated separately. PID accepts no liability for the accuracy of design data, as its accuracy has been confirmed by the Client or the supplier. If PID is liable to third parties for damage caused or partly caused by faulty design data, the Client shall indemnify PID against such third parties in their internal relationship.
For development tasks in the technical field, PID gives no guarantee that the tasks can be solved or as to the degree of perfection of a technical concept, both of which are handled to the best of its knowledge.
Patent matters and patent clearance are the responsibility of the Client. If third-party patents are relevant, legal certainty must be examined and confirmed by a patent attorney in the name and on behalf of the Client.
Fees are based on PID's quotation. Prices are exclusive of the applicable statutory VAT.
Additional services, such as reworking or changing designs, final artwork, document review, or models and prototypes that fall outside the original scope of the contract, as well as additional work resulting from changes requested by the Client, are charged separately on a time basis at the contractually agreed rate or, failing that, at the customary rate.
If no rights of use are granted and only designs, technical drawings and/or models are supplied, no separate fee for use is charged.
If the designs are used later or to a greater extent than originally intended, PID is entitled to invoice the fee for use retrospectively or to claim the difference between the higher fee for use and the fee originally paid.
Agreed licence fees, regardless of whether any statutory intellectual property rights exist, shall be accounted for by the licensee at the end of each calendar quarter, accompanied by a verifiable statement, and paid to PID within 21 days of the end of the quarter.
If, during the execution of the order, more extensive work is required than PID quoted for, PID is entitled to invoice the demonstrable additional costs without a separate agreement up to an amount of 10% of the agreed order volume.
If the agreed order volume is expected to be exceeded by more than 10%, PID is obliged to inform the Client before carrying out the additional work above the 10%.
If the agreed order volume is expected to be exceeded by more than 20%, PID may submit a new quotation to the Client for carrying out the order, unless this is merely an extension of the order resulting from additional requests by the Client. If the Client does not accept the new quotation, it is entitled to withdraw from the contract. In that case, PID is entitled to payment for the work performed in accordance with the contract up to that point, in line with the provisions above.
PID's fee claims fall due at the agreed times. All fees and costs invoiced by PID must be paid by the Client without deduction within the payment term of 15 days. The agreed fees and costs are net amounts plus the applicable statutory VAT.
For invoices to recipients in EU countries outside Germany, PID will not charge VAT; the Client will pay the VAT to the competent tax office itself (reverse charge).
In the event of late payment, PID is entitled to charge default interest at 9 percentage points above the base rate. PID accepts cheques or bills of exchange only by special agreement and only on account of performance. Accordingly, payment is only deemed to have been made once they have been successfully cleared.
The Client has no right of retention with regard to PID's due claims.
Set-off against PID's fee claim is only permitted with a claim of the Client that is undisputed or has been finally established by a court.
PID retains sole ownership of all designs, drawings and models until the fee has been paid in accordance with the contract. For designs, concepts and verbal, two- or three-dimensional design representations and design descriptions, the Client is only granted rights of use; ownership is not transferred. The originals must therefore be returned to PID after a reasonable period, unless expressly agreed otherwise.
PID's work (e.g. designs, prototypes and files) is protected by copyright as a personal intellectual creation, and the relevant provisions are deemed agreed even if the threshold of originality required under Section 2 of the German Copyright Act (UrhG) is not reached.
The agreed rights of use in the final design are transferred to the Client either expressly by separate agreement or upon full payment of the agreed fee.
Any use beyond the agreed production purpose and the agreed production volume shall be coordinated with PID where applicable. The design or elements of it may only be applied to items other than those contractually agreed with PID's written consent.
Any further transfer of the rights of use to third parties requires a further written agreement between the parties.
Rights of use in preliminary designs, variants and studies are not transferred, as these merely serve to develop and prepare the decision on a final design and design product.
Protecting the transferred rights of use is the responsibility of the Client. If the Client fails to meet its protection obligations, PID may itself take the necessary steps at the Client's expense if its interests are seriously and permanently impaired by the lack of protection.
Where a licence fee has been agreed, the licensee is obliged to manufacture the contractual items and place them on the market, making intensive use of the resources available to it.
PID is entitled to have the information reported to it for calculating the licence fee checked by a member of the tax advisory professions bound by professional secrecy, through inspection of the Client's books. If the information provided proves incorrect, the party obliged to provide it (the Client) bears the costs of this review.
Changes to and further developments of the contractual item do not affect the obligation to pay licence fees.
Where a licence fee has been agreed, the rights of use revert to PID if the Client does not start production within one year of completion of the product development phases, or abandons or discontinues production. Any statutory intellectual property rights acquired by the Client (registered designs, utility models, patents) then likewise pass to PID.
The rights of use also revert to PID if licence fee payments to PID cease.
PID has the right to be named as designer in accordance with Section 10 of the German Designs Act (DesignG). In applications for intellectual property rights filed in the Client's name, PID must be named as designer or inventor.
Substantial changes to the design product require PID's consent.
PID receives from the Client, free of charge, one specimen of each product manufactured according to its design from the first production run, for archiving, exhibition and reference purposes. For products with a manufacturing value of more than EUR 1,000, parts of the product and print-ready image files of professional quality, produced at the Client's expense, are sufficient by agreement.
PID is also entitled to receive, free of charge, 10 copies of each promotional item produced for the product it has designed.
No later than the publication of the product created on the basis of its work, PID may publish images of the product and related promotional materials, naming the Client, and use them for its own promotion. This also applies if an exclusive right of use has been transferred to the Client.
To the best of PID's knowledge, the subject matter created by PID (design product, draft, design) is an independent, personal intellectual creation. No assurance beyond this statement can be given as to the novelty or individual character of the idea underlying the subject matter.
Commercial exploitation of the subject matter is at the Client's risk.
PID undertakes to carry out the order with the greatest possible care, and in particular to handle documents, samples, prototypes and similar items entrusted to it with care.
PID is only liable for damage demonstrably caused intentionally or through gross negligence. Liability, on whatever legal grounds it may be based, is limited to direct material damage to the items and products being worked on. If PID is liable, the compensation payable by PID shall be assessed in reasonable proportion to the fee or order total according to the significance of the case, but shall never exceed 40% of that amount and shall be limited to the relevant work phase.
PID undertakes to select and instruct its vicarious agents carefully. Beyond this, it is not liable for its vicarious agents.
Where PID commissions necessary third-party services, the respective contractors are not PID's vicarious agents. PID is only liable for its own fault and only for intent and gross negligence.
The Client is obliged to check the subject matter on its own responsibility for functionality, safety and feasibility. The Client is the manufacturer within the meaning of the law. By approving PID's work, the Client assumes responsibility for its technical and functional correctness and its marketability. PID accepts no liability whatsoever for work approved by the Client.
The place of performance is PID's registered office.
The place of jurisdiction is PID's registered office, provided the Client is a merchant (Kaufmann) within the meaning of the German Commercial Code. However, PID is also entitled to bring proceedings at the Client's registered office.
The law of the Federal Republic of Germany applies.
Proportion model: A model whose sole purpose is to show the essential external shape, and in any case the proportions.
Design model: A model whose external appearance matches or comes very close to the later series production sample.
Functional model: A model that shows the technical function in full or in part, regardless of external shape.
Ergonomic model: A model used to develop optimum operability or usability.
Prototype: A model built according to the production drawings that largely corresponds to the later series production sample in material and dimensions.
Technical design drawing: A dimensioned drawing that adequately describes the external shape of the product and its structure.
3D CAD outer shell: A 3D CAD data set that adequately describes the external shape of the product and its structure but does not include any internal construction (e.g. wall thicknesses, ribs).
CAD engineering data set: A 3D CAD data set suitable for manufacturing products or their production tools, for handover to the engineering department of the manufacturer or Client.
Amendments and additions to the contract must be made in writing; an exchange of letters or fax is sufficient.
Insofar as these terms do not contain a provision, the provisions of the German Copyright Act and the German Designs Act apply.
Should individual provisions of these terms be void or invalid, this shall not affect the validity of the remaining provisions. The parties are obliged to replace the defective provision and fill any contractual gaps with a provision whose economic and legal purpose comes as close as possible to that of the defective provision.