General Conditions for Technical Assistance and Advice [November 2022]
These General Conditions shall apply in full on technical assistance, advice and other consultancy type services (including engineering consultancy services or application engineering services) ("Advice") provided by Antifriction Components (AFC) to a third party ("Recipient") unless otherwise explicitly agreed in writing by AFC. No other provisions shall be applicable, regardless of whether they were explicitly rejected or not in any individual case. The services to be performed by AFC hereunder shall be conclusively deemed to be subject to these General Conditions, which shall supersede any provisions, terms and conditions contained in Recipient’s purchase order or other communication from Recipient to AFC. AFC’s performance is expressly conditioned upon Recipient’s acceptance of these General Conditions without modification.
- Scope of the Advice
The scope, purpose and the intended use of the results of the Advice shall be determined by AFC, unless otherwise is agreed in writing. AFC shall incur no liability or obligation to the Recipient arising out of any other use or application thereof by the Recipient.
- Term of provision of Advice / Fee and payment terms
Dates or periods for the provision of the Advice are approximate and are given for information purposes only. A delay in provision of the Advice, including completion of the Advice later than the date or dates provided by AFC, shall not constitute a breach of contract and shall not entitle the Recipient to any remedy unless AFC has guaranteed a date for completion of the Advice in a written warranty which expressly modifies the provisions of these general conditions. Fees and payment terms shall be agreed separately.
- Confidential Information
"Confidential Information" shall mean any and all information related to the processes, product range, internal affairs and/or business of the parties (and their affiliates) - including but not limited to technical, practical and commercial information - that a party may disclose to the other party directly or indirectly in writing, orally, or otherwise). Each party undertakes for itself and for its employees, agents and representatives to treat the other party’s Confidential Information as strictly confidential and not disclose or communicate such Confidential Information to any third parties. Confidential Information may be disclosed only to those representatives and employees of a party to whom such disclosure is necessary for the purpose of the Advice. AFC shall, however, be entitled to communicate the Recipient’s Confidential Information to another company whose products or services will be required to fulfil the Recipient’s requirements. Neither party may use the other party's Confidential Information for any other purpose than the intended use of the result of the Advice (see Section 2 above). No obligation of use, disclosure or confidentiality shall apply to information which (i) was known by the receiving party (or an affiliate of the receiving party) prior to receipt from the other party; (ii) was in the public domain prior to receipt by the receiving party from the other party or which becomes in the public domain subsequent to receipt from the other party through no fault of the receiving party or the receiving party's employees, agents or representatives; (iii) subsequent to receipt by the receiving party from the other party, is made available to the receiving party (or an affiliate of the receiving party) by a third party which is legally entitled to make it available; (iv) if such disclosure is required by law, court order or any applicable regulatory authority or (v) is developed by the receiving party (or an affiliate of the receiving party) independently of the other party's Confidential Information. Each party shall provide proper and secure storage for the other party's written Confidential Information. All copies of the other party's Confidential Information will be returned to the other party immediately upon the request of the other party, unless such documents are required as a part of a party's internal decision-making process or maintenance of company records.
- Recipient's Warranty
The Recipient warrants that use by AFC of designs or instructions provided by Recipient or on behalf of the Recipient shall not cause AFC to infringe any patent, registered trademark, copyright, design right or similar rights protected by law. Recipient shall defend, hold harmless and indemnify AFC against any claims of infringement and resulting damages and expenses (including, without limitation, legal and other professional fees and disbursements) relating to the Advice covered by this Agreement.
- Intellectual Property
AFC shall retain control and ownership of all inventions, designs and copyright and any other intellectual property owned, controlled or possessed by AFC. The Parties agree that AFC shall own all right, title and interest in and to the Advice and Results (and “Results” shall mean any ideas, inventions, discoveries, know-how, data, documentation, reports, materials, writings, designs, computer software, processes, principles, methods, techniques and other information, recorded in any form, that are discovered, conceived, reduced to practice or otherwise generated as a result of or in connection with any Advice performed under these general conditions by or on behalf of AFC or the Recipient, and any patent, trade secret, copyright or other intellectual property rights pertaining to any of the foregoing.) The Recipient shall make full disclosure of all Results. If and to the extent the Recipient has generated Results, the Recipient hereby assigns and transfers, without additional consideration, to AFC all right, title and interest in and to such Results. AFC shall be entitled to apply for and obtain in AFC's own name patents, design rights or any other legal protection in relation to any of the Advice or on Results. The Recipient shall, and shall cause its employees and agents to execute, or cause to be executed, all papers necessary to affect the foregoing, including assignments as necessary or useful to vest all right, title and interest in and to the Advice or Results in AFC, without additional consideration.
- Limitation of liability and indemnity
The obligations of AFC arising out of the provision of the Advice are strictly limited to the performance and provision of the Advice using all reasonable skill and care. AFC cannot and does not make any promises, guarantees or warranties, express or implied, that the Advice will have any influence on the product or process performance or that it will improve Recipient’s profitability or that the product or process will be fit for a particular purpose and/or will achieve any desired stated outcomes or objectives. AFC further does not guarantee attainment of the intended result of the Advice. This is a commercial agreement between business entities, and, except as otherwise specifically provided herein, ALL WARRANTIES, EXPRESS AND IMPLIED, ARE SPECIFICALLY DENIED AND EXCLUDED BY AFC TO THE FULL AND MAXIMUM EXTENT PERMITTED BY LAW. This is an agreement for the commercial sale of services and any transfer of goods by AFC to Recipient is incidental to that commercial purpose. This is not a contract for the sale of goods, nor should it be interpreted as such by any court, arbitration panel, government agency or legal tribunal. If AFC fails to provide the Advice in a professional manner, then the Recipient shall promptly notify AFC thereof in writing, specifying the problems, and AFC shall promptly carry out an investigation. AFC shall at its own expense use reasonable endeavours to remedy any defective Advice. AFC's obligations shall not extend to defects which are due to the Recipient not complying with instructions given by AFC or which are caused by improper or abnormal use or by events outside the control of AFC or which are due to the Recipient having provided AFC with incorrect or incomplete information. The above-mentioned obligation of AFC to remedy Anya defective Advice is the only remedy available to Recipient. IN NO EVENT SHALL AFC BE LIABLE FOR MONETARY CLAIMS OF ANY KIND, WHETHER BASED UPON CONTRACT, TORT LIABILITY (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR ANY LOSS OR DAMAGE (INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, PROFITS OR REVENUE OR CLAIMS OF RECIPIENTS CUSTOMER, OR SPECIAL, INDIRECT OR CONSEQUENTIAL LOSSES, OR PENAL DAMAGES OF ANY NATURE), ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM ANY USE OR RELIANCE BY RECIPIENT OF THE ADVICE. Recipient shall reimburse AFC for all costs and damages paid or payable by AFC to a third party as a consequence of AFC providing Advice to the Recipient, unless such cost and damages are due to AFC having been grossly negligent.
- Applicable law and Jurisdiction
These General Conditions shall be governed by and construed in accordance with English law and the parties each agree to the non-exclusive jurisdiction of the Courts of England and Wales to determine any disputes arising in connection with these General Conditions and/or any Advice provided by AFC.