General Terms and Conditions
of VAIVA GmbH
1.0 Scope of application
1.1 The following General Terms and Conditions ("General Terms") of VAIVA GmbH (hereinafter referred to as "VAIVA") shall apply to all contracts, including future contracts, to be concluded by it with clients and buyers (hereinafter referred to as "THE PRINCIPAL"), in particular development and service contracts, as well as to all offers, deliveries and services of VAIVA, including future offers, deliveries and services, even if they are not expressly agreed again.
1.2 The General Terms shall only apply if THE PRINCIPAL is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB), a legal entity under public law or a special fund under public law.
1.3 These General Terms shall apply exclusively. A binding offer by VAIVA is made on the condition that any terms and conditions of THE PRINCIPAL do not become part of the contract. THE PRINCIPAL shall be obliged to expressly negotiate changes and to include them in the contract by means of individual written agreements. Should THE PRINCIPAL nevertheless include its own contractual terms and conditions when concluding the contract, the contract shall not initially come into effect. Insofar as THE PRINCIPAL nevertheless begins with the execution of the contract, THE PRINCIPAL thereby agrees to the conclusion of a contract with the exclusive inclusion of these General Terms.
1.4 References to the effect of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall apply insofar as they are not directly amended or expressly excluded in the individual contractual provision or in these General Terms.
2.0 Subject matter of the contract, performance obligations
2.1 The subject matter of the contract and the content and scope of the performance obligations arise exclusively from VAIVA's binding offer, which may refer to THE PRINCIPAL's specifications in whole or in part. If the provisions and/or content of the specifications differ from the provisions and/or content of the binding offer, the binding offer shall take precedence over the specifications. The contract shall come into effect upon receipt of the acceptance of the offer by THE PRINCIPAL. Unless otherwise specified in the offer, VAIVA shall be bound by its offer for one month.
2.2 VAIVA shall be entitled to have services provided by third parties (e.g. subcontractors).
2.3 Technical descriptions, public statements and other information in brochures and other information materials of VAIVA are nonbinding and do not form part of the description of the quality of the products, unless the offer of VAIVA expressly refers to them.
2.4 VAIVA shall adhere exclusively to the requirements of THE PRINCIPAL in the provision of services and shall not examine whether these requirements or the specific use of the work results by THE PRINCIPAL in individual cases is compatible with statutory provisions and/or whether a purpose pursued by THE PRINCIPAL can be achieved, unless the purpose was contractually agreed.
3.0 Prices and terms of payment
3.1 Unless expressly stated otherwise, all prices are quoted in Euro net plus the applicable value added tax.
3.2 Unless otherwise expressly stated in the offer, the price quoted does not include VAIVA's ancillary services (e.g. provision, assembly, installation or execution, distribution and reproduction of works), ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance) and travel costs, accommodation and expenses, but shall be invoiced separately in the amount actually incurred.
3.3 Unless otherwise expressly stated in the offer, invoices shall be issued monthly. VAIVA's invoices shall be payable by bank transfer without deduction no later than 30 days after receipt of the invoice by THE PRINCIPAL. Payments shall be deemed to have been made from the time at which the amount is freely available to VAIVA.
4.0 Change Request
4.1 A change request is a contractual amendment or extension to the content of the contract that goes beyond the exercise of THE PRINCIPAL's right of choice and design.
4.2 Change requests must be commissioned separately by THE PRINCIPAL in advance. The resulting cost and deadline extensions must be accepted. VAIVA may reject the order, in particular if the service cannot be performed or the resources required for this are not available or cannot be made available to VAIVA. If THE PRINCIPAL commissions a change request without requesting a prior written offer from VAIVA, invoicing shall be based on the time required for this at the hourly rates of VAIVA on which the calculation of the price in the offer is based; the binding nature of previously agreed deadlines shall not apply. In case of doubt, an instruction from THE PRINCIPAL shall be deemed a change request.
5.0 Obligations to cooperate and timetable
5.1 THE PRINCIPAL shall be obliged to name and provide VAIVA with all laws, standards and other regulations on the basis of which it wishes the subject matter of the service to be provided before placing the order. THE PRINCIPAL shall also provide VAIVA with all data, documents and other information to be taken into account in the creation of the subject matter of the service in written form upon request before placing the order.
5.2 THE PRINCIPAL shall be obliged to name a contact person with all necessary competencies to VAIVA at the latest at the start of the project.
5.3 The obligation of VAIVA to perform within the timetable of the offer is subject to the timely and proper fulfillment of THE PRINCIPAL's obligations to cooperate. The dates or deadlines agreed in the timetable of the offer shall be automatically postponed or extended by the period in which THE PRINCIPAL fails to fulfill its obligations to cooperate in a timely and proper manner. If THE PRINCIPAL is in delay with the payment of an earlier service, VAIVA shall be entitled to withhold its further services until payment has been made. THE PRINCIPAL may not derive any rights from the justified withholding. THE PRINCIPAL shall bear the costs arising from the withholding of services or goods. The same shall apply if THE PRINCIPAL does not fulfill its obligations to cooperate in a timely and proper manner. The provisions of these General Terms on force majeure shall remain unaffected.
5.4 If partial services within the agreed scope of services are reasonable for THE PRINCIPAL, these may be provided and invoiced. Partial services shall be deemed reasonable for THE PRINCIPAL in particular if they can be used independently by THE PRINCIPAL in accordance with the purpose of the contract before the overall project is completed.
6.0 Performance delays
6.1 If VAIVA or its suppliers are unable to meet agreed deadlines and dates due to temporary impediments to performance for which they are not responsible (e.g. force majeure, labor disputes, natural disasters, general shortages of energy and raw materials, insurmountable traffic disruptions), the deadline shall be extended or postponed by the period for which the temporary impediment to performance existed. VAIVA shall inform THE PRINCIPAL of such a case without delay. The provisions of these General Terms on force majeure shall remain unaffected.
6.2 In the event of delay for which VAIVA is responsible, THE PRINCIPAL's compensation for delay shall be limited to a maximum of 5% of the value of the service. THE PRINCIPAL may also set VAIVA a reasonable grace period in writing for the provision of the service, which must be at least 15 working days. If this period expires without result, THE PRINCIPAL shall be entitled to withdraw from the contract. The above provisions shall apply accordingly if VAIVA - without being entitled to do so - only provides its services in part.
6.3 Claims of THE PRINCIPAL in accordance with the preceding paragraph shall only exist to the extent that VAIVA is not liable without limitation in accordance with the statutory provisions or these General Terms.
7.0 Place of use and fulfillment / transfer of risk for delivery and shipping
7.1 Unless otherwise expressly stipulated in the offer, the place of use and performance shall be VAIVA's place of business. Deliveries are agreed to be ex works of VAIVA. If VAIVA ships the goods or works to a place other than the place of performance at the request of THE PRINCIPAL, the risk shall pass to THE PRINCIPAL as soon as VAIVA has delivered the goods to the forwarding agent, carrier or other person or institution designated to carry out the shipment. Shipments and returns shall always be at THE PRINCIPAL's risk.
7.2 The CONTRACTING PARTIES may agree to take out insurance for transport damage at the expense of THE PRINCIPAL. There is no obligation to take out insurance.
7.3 Notwithstanding any agreements to the contrary, VAIVA shall be free to choose the means and route of transportation without being obliged to choose the fastest and/or cheapest option.
8.0 Warranty for defects
8.1 THE PRINCIPAL's claims in the event of defects in the contractual services shall be governed by the applicable statutory provisions, unless otherwise stipulated below.
8.2 VAIVA shall always provide its services on the basis of the generally recognized rules of technology and the state of the art known to it at the time the project is carried out, taking into account the care customary in the industry.
8.3 If the subject matter of the service is the development of software, THE PRINCIPAL is aware that it is not possible to provide software development services that are completely free of errors according to the state of the art. This standard must also be taken into account in particular when determining defects.
8.4 VAIVA warrants that program components/own developments developed inhouse for such an object of performance are free of third-party rights that restrict or exclude the use of the contractual service for the contractually stipulated purpose. This shall not apply to third-party software, in particular Free Software (open source software, freeware and/or public domain software including subcomponents or parts thereof), which was used with the knowledge of THE PRINCIPAL. In this case, VAIVA assigns to THE PRINCIPAL any warranty claims to which it is entitled against its supplier. THE PRINCIPAL is advised that it must comply with license obligations when passing on Free Software. In particular, this may include the delivery of mandatory information (e.g. license texts, copyright notices, change notices, "written offer") or source codes.
8.5 Insofar as the subject matter of the service is dependent on third-party software (e.g. operating system, browser) for its operation or use, it is only warranted that it is compatible with the third-party software specified in the offer or, if none is specified here, with the third-party software in use at the time the contract is concluded. VAIVA does not warrant that the object of performance is compatible with later versions. The warranty also does not include the adaptation of the object of performance to changed conditions of use and technical and functional developments such as changes to the IT environment, in particular changes to the hardware or the operating system, adaptation to the functional scope of competing products or the creation of compatibility with new data formats.
8.6 THE PRINCIPAL shall give written notice of defects by means of a comprehensible description of the symptoms of the defect, evidenced by written records, hard copies or other documents illustrating the defect. This complaint must be made immediately, but at the latest within fourteen working days of the discovery of a defect, or in the case of recognizable defects after delivery. The notice of defects must enable the reproduction of the defect. THE PRINCIPAL's statutory obligations to inspect and give notice of defects shall remain unaffected.
8.7 In the event of a defect, VAIVA shall initially only be obliged to provide cure. Cure shall be effected at the option of the VAIVA by rectification or subsequent delivery. If the object of performance is the development of software, VAIVA shall fulfill its obligation of cure by making a new version of the object of performance available to THE PRINCIPAL. Cure for software components may also be effected by making a new program version available. The removal of defective software and/or installation of a new version is not part of the subsequent delivery.
8.8 VAIVA shall bear the expenses necessary for the purpose of cure, in particular transport, travel, labor and material costs, insofar as these expenses are not increased by the fact that the goods have been moved to a place other than the original place of performance after delivery or have been combined with other items. Replaced parts shall become the property of VAIVA. THE PRINCIPAL may not demand reimbursement of installation and removal costs as part of cure.
8.9 If cure fails, THE PRINCIPAL shall be entitled to demand a reduction in price or to withdraw from the contract under the statutory conditions.
8.10 VAIVA may refuse to provide cure until THE PRINCIPAL has paid the agreed remuneration to VAIVA, less a part corresponding to the economic significance of the defect.
8.11 If THE PRINCIPAL asserts a defect against VAIVA and this defect cannot be detected or reproduced or the defect cannot be assigned to a warranty obligation of VAIVA after appropriate investigation (apparent defect) and THE PRINCIPAL could have recognized this, then THE PRINCIPAL shall reimburse VAIVA for the costs and expenses for verification and/or attempted rectification of the defect.
9.0 Withdrawal / termination
9.1 VAIVA shall be entitled to terminate a contract concluded on the basis of these General Terms, which establishes or is the subject of a continuing obligation between the CONTRACTING PARTIES, in whole or in part at any time without stating a reason, subject to a reasonable notice period.
9.2 If VAIVA's claim to payment is endangered by THE PRINCIPAL's inability to pay, VAIVA shall be entitled to refuse performance until THE PRINCIPAL has effected payment or provided security for it. VAIVA's claim to payment is endangered in particular if THE PRINCIPAL is in delay with the payment of the agreed remuneration for two consecutive invoices.
If payment or provision of security is not made within 12 working days following a one-off request to this effect, VAIVA shall be entitled to withdraw from the contract or to terminate the contract within a reasonable period of time and may demand compensation for standby costs amounting to one fifth of an average monthly remuneration calculated on the basis of the average of the last three months in addition to the remuneration for all services rendered to date. If the execution of the project began less than three months ago, the average monthly remuneration shall be calculated according to the shorter term of the project. VAIVA shall be entitled to claim higher damages. THE PRINCIPAL shall be permitted to prove that VAIVA has not incurred any expenses or damages at all or that the amount of damages is lower than the lump sum.
9.3 If VAIVA itself is not supplied, not supplied correctly or not supplied on time, although it has placed sufficient orders with reliable suppliers, VAIVA shall be released from its obligation to perform and may withdraw from the contract. This shall only apply if VAIVA informs THE PRINCIPAL of the non-availability of the service and immediately reimburses THE PRINCIPAL for any consideration already provided.
10.1 THE PRINCIPAL shall be obliged to accept a work and to inform VAIVA of the acceptance carried out. This shall be deemed to have taken place no later than 15 working days after notification of completion and request for acceptance, unless the agreed milestone plan contains a deviating provision. Otherwise, the provision in the milestone plan shall take precedence.
10.2 If the production of a work is owed as a contractual service, THE PRINCIPAL shall be responsible for immediately reporting any defects identified during acceptance.
11.1 In the event of malice, intent or gross negligence, VAIVA shall be liable without limitation in accordance with the statutory provisions.
11.2 Damages caused by simple negligence on the part of VAIVA shall only be compensated if this involves the breach of a material obligation, the fulfillment of which is essential for the proper execution of the contract and on the fulfillment of which THE PRINCIPAL may regularly rely (cardinal obligation). In this case, VAIVA's liability shall also be limited to the extent of damage that VAIVA could typically expect to occur based on the circumstances known at the time the contract was concluded and in view of the nature of the contractual agreements.
11.3 VAIVA shall only be liable for the loss of or damage to data and its recovery if such a loss could not have been avoided by THE PRINCIPAL even if appropriate, proper data backup measures had been taken.
11.4 The above exclusions and limitations of liability shall also apply in favor of VAIVA's employees, representatives, bodies and vicarious agents as well as in favor of other third parties used by VAIVA to fulfill the contract.
11.5 Cases of mandatory statutory liability (e.g. claims for damages under the Product Liability Act - ProdHaftG) and liability for damages resulting from injury to life, limb or health shall remain unaffected by the above limitations of liability.
12.0 Force Majeure
12.1 To the extent either of the CONTRACTING PARTIES is precluded from discharging its contractual duties by force majeure, it is released from the respective duties and from compliance with performance deadlines. In such event, the other CONTRACTING PARTY shall have no secondary claims unless the affected CONTRACTING PARTY has expressly guaranteed performance of the duties in question or expressly assumed the risk of their non-performance. Force majeure means events or circumstances for which neither of the CONTRACTING PARTIES is responsible that are external to the affected enterprise, unrelated to its operations, unavoidable per se or in timely fashion even using the highest level of care that could reasonably be expected, and unforeseeable, such as natural catastrophes or extreme natural events, plagues, epidemics or pandemics, wars, terrorist attacks, sabotage, explosions, fire, failures of transportation, power, or telecommunication networks, strikes or lockouts, and legal provisions or actions by public authorities, governments, courts, or international institutions, including embargoes and sanctions.
12.2 Where the situation that is preventing performance continues without interruption for more than 30 days, either CONTRACTING PARTY may terminate this contract by giving the other CONTRACTING PARTY reasonable advance notice of such termination.
12.3 Where force majeure considerably impedes the discharge of contractual duties by a CONTRACTING PARTY that has not expressly guaranteed performance of the duties in question or expressly assumed the risk of their non-performance, the CONTRACTING PARTIES shall, with reasonable promptitude after notification of the impediment, use their best efforts to agree on supplemental and/or alternative contractual provisions that take appropriate account of the consequences of the force majeure situation.
12.4 Should in such event the other CONTRACTING PARTY refuse to consent to supplemental and/or alternative provisions that take appropriate account of the consequences of the force majeure situation, the CONTRACTING PARTY that is affected by the impediment may terminate the contract by giving reasonable advance notice.
12.5 The CONTRACTING PARTY whose performance is precluded or impeded is required to notify the other CONTRACTING PARTY without delay of the preclusion or impediment, as the case may be. It is likewise required to notify the other CONTRACTING PARTY as soon as the preclusion or impediment ceases to apply.
13.0 Sustainability Requirements
13.1 The "Volkswagen Group Requirements Regarding Sustainability in its Relationships with Business Partners (Code of Conduct for Business Partners)" define the expectations as to how the Group's trading partners should operate their businesses with regard to sustainability. VAIVA has the same requirements with regard to the parties with which it does business.
13.2 The "Volkswagen Group Requirements Regarding Sustainability in its Relationships with Business Partners (Code of Conduct for Business Partners)" constitute an integral part of the contract in their most recent version in effect at the time of contracting. THE PRINCIPAL agrees to comply therewith. If not enclosed with the request for quotation or the purchase order, the "Volkswagen Group Requirements Regarding Sustainability in its Relationships with Business Partners (Code of Conduct for Business Partners)" are available at www.vwgroupsupply.com and will in addition be provided by VAIVA upon request.
Subject to sections 438 (1) No. 2, 479, 634 a (1) No. 2 German Civil Code (BGB), claims due to a defect in accordance with the provisions of these General Terms shall become time-barred one year after the statutory commencement of the limitation period, unless VAIVA has unlimited liability in accordance with the statutory provisions or these General Terms.
15.0 Retention of title
15.1 The title to goods delivered by VAIVA shall remain with VAIVA until all claims arising from the business relationship, including future claims arising from contracts concluded at the same time or later, have been settled. This shall also apply if claims have been included in a current invoice and the balance has been struck and recognized. THE PRINCIPAL undertakes to treat the delivered goods with care and to insure them in favor of VAIVA against the usual risks (e.g. fire, water, storm, theft).
15.2 THE PRINCIPAL shall be entitled to sell or process the goods in the ordinary course of business. It shall carry out any processing on behalf of VAIVA without the latter being obliged to do so. If the goods subject to retention of title are processed, combined or mixed with other items, VAIVA shall in principle acquire a co-ownership share in the new item, in the case of processing in the ratio of the value (= gross invoice value including ancillary costs and taxes) of the goods subject to retention of title to the new item, and in the case of combining or mixing in the ratio of the value of the goods subject to retention of title to the value of the other goods. As soon as VAIVA's ownership is lost through mixing or combining, THE PRINCIPAL shall transfer co-ownership to VAIVA on a pro rata basis.
15.3 THE PRINCIPAL hereby assigns to VAIVA by way of security all claims arising from the resale against a customer or third party, including those arising from the inclusion in current account relationships. After the assignment, THE PRINCIPAL shall be authorized to collect the claims assigned to VAIVA. VAIVA reserves the right to revoke the authorization for resale and collection and to collect the assigned claims itself if THE PRINCIPAL does not properly fulfill its contractual obligations to VAIVA.
16.0 IP rights and copyrights, rights to work results
16.1 VAIVA shall remain the owner of the industrial property rights and copyrights to which it is entitled at the time of conclusion of the respective contract ("prior property rights"). Insofar as VAIVA's prior property rights are required for the utilization of the work result, THE PRINCIPAL shall receive a paid, simple right of use, limited in terms of territory, time and content, non-transferable and revocable at any time, which enables the use for the agreed purpose of THE PRINCIPAL.
16.2 Unless expressly agreed otherwise, VAIVA is and remains the rights holder to all results, including all inventions, know-how, test and development reports, suggestions, ideas, drafts, designs, proposals, samples and models, which it achieves within the scope of its development and service results ("work results"). The same applies to the illustrations, drawings, calculations and other documents made available to THE PRINCIPAL as well as to all information received since the commencement of contract negotiations with regard to the activity, performance and goods of VAIVA. These may not be made accessible to third parties without the prior written consent of VAIVA.
16.3 Insofar as the work results are capable of being protected by industrial property rights, only VAIVA shall in principle be entitled to register, pursue and drop the industrial property rights in its own name.
16.4 Insofar as the work results are protected by copyrights to which the CONTRACTOR is entitled, the CONTRACTOR shall grant the CLIENT rights of use which enable the CLIENT to use the work results for the agreed purpose.
17.1 All information, knowledge, results, data, and documents that THE PRINCIPAL receives from VAIVA or in any way acquires from VAIVA in the context of and/or in the course of performance of contracts entered into or in the pre-contractual phase (RFQ, purchase order, etc.) (hereinafter referred to as "CONFIDENTIAL INFORMATION") shall be subject to non-disclosure regardless of how such information is embodied, regardless of the manner in which it is communicated or the way it is acquired (e.g. as an unencrypted e-mail), and regardless of whether it is expressly designated or marked as subject to non-disclosure (e.g. as "confidential" or "secret"). This includes without limitation all know-how, patent rights and other industrial property rights, source code, and other intellectual property rights provided and all other information that is not publicly available which THE PRINCIPAL acquires from VAIVA. CONFIDENTIAL INFORMATION shall also include trade secrets within the meaning of the Act on the Protection of Trade Secrets (GeschGehG).
17.2 THE PRINCIPAL agrees to preserve the secrecy of CONFIDENTIAL INFORMATION as a trade secret even after the termination of the contract and to use it only for purposes of the pre-contractual phase (RFQ, purchase order, etc.) and for any contract entered into and the performance thereof, and only within the limits envisaged by these General Terms and by contracts entered into. Its disclosure within THE PRINCIPAL's organization shall be limited to that which is necessary for the pre-contractual phase (RFQ, purchase order, etc.) and for performance of the contract (disclosure on strict "need-to-know" basis).
17.3 THE PRINCIPAL is required to take all necessary action to prevent third parties from gaining access to CONFIDENTIAL INFORMATION. "Access" shall include without limitation direct or indirect disclosure to third parties, whether gratuitously or for consideration, as well as viewing or examination by third parties.
17.4 No other use by THE PRINCIPAL and no disclosure by it to third parties is permitted without VAIVA's express prior written consent.
17.5 THE PRINCIPAL shall ensure that all natural and juridical persons who acquire knowledge of CONFIDENTIAL INFORMATION in connection with the pre-contractual phase (RFQ, purchase order, etc.) or in the course of performance of contracts entered into are bound by non-disclosure obligations analogous to those set forth herein. THE PRINCIPAL shall ensure that, to the extent legally possible, the obligations to be imposed hereunder on THE PRINCIPAL's employees and on the other above described natural and juridical persons shall survive the termination of the employment or other relationship conferring access to CONFIDENTIAL INFORMATION.
17.6 The non-disclosure obligations regarding CONFIDENTIAL INFORMATION cease to apply to the extent
- THE PRINCIPAL proves that it was already aware of the information before the relevant disclosure, or
- the information was public knowledge or generally available before the relevant disclosure or, after such disclosure, it became public knowledge or generally available through no fault of THE PRINCIPAL, or
- the information is substantially the same as information that was at some point disclosed or made available to THE PRINCIPAL by an authorized third party.
17.7 THE PRINCIPAL shall not refer to its business relationship with VAIVA in advertising or in other documents without VAIVA's prior written consent. The same applies to THE PRINCIPAL's use of VAIVA's trademarks, trade names, or other insignia.
17.8 The foregoing obligations shall not limit or prejudice any more extensive non-disclosure obligations that THE PRINCIPAL may have to VAIVA pursuant to other non-disclosure commitments. A non-disclosure agreement separately entered into shall in particular take precedence over the provisions above set forth. In the event the contract is entered into, THE PRINCIPAL agrees to sign VAIVA's non-disclosure agreement, if it has not already done so.
18.0 Data protection
18.1 The CONTRACTING PARTIES agree to comply with all applicable data protection provisions in its performance of the contract.
18.2 The CONTRACTING PARTIES are required to impose obligations analogous to these data protection provisions on all employees and third parties on whom they rely for their performance of contractual obligations and shall furnish proof of its compliance with this requirement to the other CONTRACTING PARTY upon request.
19.0 Orderer termination
19.1 THE PRINCIPAL may terminate a contract for work in writing without stating reasons until completion of the work. If THE PRINCIPAL terminates the contract, VAIVA shall be entitled to demand the agreed remuneration. However, VAIVA shall be entitled to deduct any expenses saved as a result of the termination of the contract or which it acquires or maliciously fails to acquire through other use of its labor. It is assumed that VAIVA is entitled to 5% of the agreed remuneration for the part of the work not yet performed.
19.2 Upon termination of the contract, VAIVA shall transfer the work result achieved up to the time of termination to THE PRINCIPAL after THE PRINCIPAL has paid the remuneration, any standby costs and all other outstanding services.
20.0 English Version
Any English version of these General Terms is solely for purposes of convenience. The German version is alone authoritative and shall take precedence over the English version in the event of any contradiction or conflict. This also applies analogously to all other documents related hereto, including without limitation other applicable documents.
No assignment or delegation of contractual rights and duties by THE PRINCIPAL is valid unless done with VAIVA's prior written consent. VAIVA will only refuse such consent when its legitimate interests outweigh those of THE PRINCIPAL. If such an assignment is made without VAIVA consent, it shall be effective, but VAIVA may make payment to THE PRINCIPAL or to the third party with discharging effect at its discretion.
The CONTRACTING PARTIES may declare set-off, assert rights of retention (withhold performance), and raise the defense of unperformed contract in all situations in which the law permits, whereby THE PRINCIPAL is permitted to declare set-off only by reason of counterclaims that are undisputed or the subject of a final judgment or that arise from the same legal relationship as the principal claim.
23.0 Applicable Law and Venue
23.1 These General Terms and agreements between the CONTRACTING PARTIES entered into on the basis thereof shall be governed by the law of the Federal Republic of Germany excluding the U.N. Convention on the Sale of Goods.
23.2 Legal actions regarding all claims arising out of or in connection with these General Terms and the entire legal relationship between the CONTRACTING PARTIES may be brought only in a court of proper jurisdiction for the judicial district that includes Ingolstadt. VAIVA is, however, entitled to bring suit against THE PRINCIPAL in any other venue the law provides.
24.1 All contracts / agreements entered into on the basis of these General Terms must be in written form (§ 126 of the German Civil Code); no oral collateral agreements exist. Amendments and additions not adopted through individual agreements between the CONTRACTING PARTIES are invalid unless agreed in a writing personally signed by their representatives. The requirement of written form is satisfied by scanning the signed declaration or, in the case of a contract, the signed contract text, and transmitting this by telecommunication, or by using simple eletronic signature via DocuSign. Specifics regarding the scope of performance may be sent via electronic ticket system.
24.2 To the extent neither these General Terms nor other agreements between the CONTRACTING PARTIES specify written form or another more stringent form, declarations, notices, and notifications with legal significance that the CONTRACTING PARTIES must make or give to each other after the time of contracting (e.g. to set a deadline, demand a performance, exercise a contractual right, give notices, or convey information) are invalid unless via email.
25.0 Order of Precedence of the Component Parts of the Contract
The below listed regulations and documents constitute binding and integral parts of the contract upon acceptance of the offer of VAIVA, to be applied in the following order of precedence in the event of any conflicts between them:
- Offer of VAIVA,
- Any existing framework agreements between the CONTRACTING PARTIES,
- Any existing non-disclosure agreement between the CONTRACTING PARTIES,
- These General Terms,
- Order confirmation of VAIVA,
- THE PRINCIPAL's specifications.
26.0 Reformation and Severability Clause
Should individual provisions contained herein be or become invalid or unenforceable in whole or in part or should there be gaps in any term, this shall not affect the validity of the remaining provisions hereof.
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