1. Scope of Application
1.1 The following General Terms and Conditions (GTC) of Valtech Mobility GmbH (hereinafter referred to as “VALTECH MOBILITY”) apply to all contracts to be concluded by VALTECH MOBILITY with clients and purchasers (hereinafter referred to as “CONTRACTOR”), in particular development and service contracts.
1.2 The GTC apply only if the CONTRACTOR is an entrepreneur within the meaning of § 14 of the German Civil Code (BGB), a legal person organized under public law, or a special fund organized under public law.
1.3 These GTC shall apply in the most current version valid at the time of conclusion of the contract. They shall also apply to all future offers, deliveries and services of VALTECH MOBILITY, even if not expressly agreed. They shall also apply to all future transactions within the scope of this GTC with the CONTRACTOR, even if they are not expressly agreed again.
1.4 These GTC shall apply exclusively. A binding offer by VALTECH MOBILITY is subject to the condition that any business terms and conditions that the CONTRACTOR may have are not part of the resulting contract. This shall also apply if VALTECH MOBILITY does not expressly object to the CONTRACTOR’s terms and conditions or if the CONTRACTOR declares that it only wishes to include his own terms and conditions.
1.5 References to the application of statutory provisions are purely for purposes of clarification. The statutory provisions apply even in the absence of such reference unless they are directly modified or expressly excluded by a contractual term individually agreed or by these GTC.
2. Subject Matter of Contract, Performance Obligations
2.1 The subject matter of the contract as well as the content and scope of the performance obligations are exclusively derived from VALTECH MOBILITY’s binding offer, which may refer in full or in part to the specifications of the CONTRACTOR. If regulations and/or content from the specifications deviate from regulations and/or content from the binding offer, the binding offer shall take precedence over the specifications in this case. The contract is concluded upon receipt of the acceptance of the offer by the CONTRACTOR. Unless otherwise specified in the offer, VALTECH MOBILITY shall be bound by its offer for one month.
2.2 VALTECH MOBILITY is entitled to have services owed by it performed by third parties (e.g. subcontractors).
2.3 Technical descriptions, public statements and other information in VALTECH MOBILITY’s brochures and other information materials are non-binding and are not part of the description of the characteristics of the products, unless VALTECH MOBILITY’s offer expressly refers to them.
2.4 VALTECH MOBILITY shall exclusively adhere to the specifications of the CONTRACTOR when rendering the services and shall not furthermore examine whether these specifications or the specific use of the work results (as defined under Section 14.2) by the CONTRACTOR in individual cases are compatible with statutory provisions and/or whether a purpose pursued by the CONTRACTOR can thus be achieved, unless the purpose was contractually agreed.
3. 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 expressly stated otherwise in the offer, the price quoted does not include VALTECH MOBILITY’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. The invoices of VALTECH MOBILITY shall be payable by bank transfer without deduction no later than 30 days after receipt of the invoice by the CONTRACTOR. Payments shall be deemed to have been made from the date on which the amount is freely available to VALTECH MOBILITY.
4. Change Request
4.1 A change request is a contractual amendment or extension of the contract content that goes beyond the exercise of the CONTRACTOR’s right to choose and design.
4.2 Change Requests must be ordered separately in advance by the CONTRACTOR. The resulting cost and deadline overruns must be accepted. VALTECH MOBILITY may reject the order, in particular if the service cannot be performed or the necessary resources of VALTECH MOBILITY are not available or cannot be made available. If the CONTRACTOR commissions a change request without requesting a prior written offer from VALTECH MOBILITY, VALTECH MOBILITY shall bill the CONTRACTOR according to the time accruing for this purpose at the hourly rates of VALTECH MOBILITY on which the calculation of the price in the offer is based; the binding nature of previously agreed dates shall cease to apply. An instruction of the CONTRACTOR shall be deemed a change request in case of doubt.
5. Obligations to Cooperate and Time Schedule
5.1 The CONTRACTOR shall be obliged to inform VALTECH MOBILITY prior to placing the order of all laws, standards and other regulations on the basis of which it wishes the performance object to be performed. The CONTRACTOR shall also make available to VALTECH MOBILITY, prior to placing the order, all data, documents and other information which are to be taken into account in the development of the performance object in written form on request.
5.2 The CONTRACTOR is obliged to name to VALTECH MOBILITY a contact person with all the necessary competences at the latest at the beginning of the project.
5.3 In accordance with the development character of the projects, the dates and deadlines agreed in the time schedule of the offer are only guidelines. VALTECH MOBILITY’s obligation to perform within the time schedule of the offer requires the timely and proper fulfilment of the CONTRACTOR’s obligations to cooperate. The dates or periods agreed in the time schedule of the offer shall be automatically postponed or extended by the period in which the CONTRACTOR fails to meet his obligations to cooperate in a timely and proper manner. If the CONTRACTOR is in default with the payment of an earlier service, VALTECH MOBILITY shall be entitled to withhold its further services until payment has been made. The CONTRACTOR may not derive any rights from the justified retention. The CONTRACTOR shall bear the costs arising from the retention of the services or goods. The same applies to such obligations to cooperate which third parties must fulfil on behalf of the CONTRACTOR.
5.4 If partial performances within the framework of the agreed scope of performance are reasonable for the CONTRACTOR, they may be performed and invoiced. The CONTRACTOR can in particular be reasonably expected to accept partial performance if it can be used independently by the CONTRACTOR in accordance with the purpose of the contract before the overall project has been completed.
6. Delays in Delivery
6.1 If VALTECH MOBILITY or its suppliers are unable to meet agreed deadlines and dates due to temporary obstacles to performance for which they are not responsible (e.g. force majeure, industrial action, natural disasters, general shortage of energy and raw materials, insurmountable traffic disruption), the deadline shall be extended or postponed by the period for which the temporary obstacle to performance existed. VALTECH MOBILITY shall immediately inform the CONTRACTOR of such a case.
6.2 In the event of a delay for which VALTECH MOBILITY is responsible, the CONTRACTOR’s compensation for the delay shall be limited to a maximum of 5% of the value of the service. Furthermore, the CONTRACTOR may grant VALTECH MOBILITY a reasonable grace period in writing, which must be at Valtech Mobility GmbH General Terms and Conditions (GTC) Status: 07/2019 4 least 15 working days. After its fruitless expiry, the CONTRACTOR shall be entitled to withdraw from the contract. The above provisions shall apply mutatis mutandis if VALTECH MOBILITY – without being entitled to do so – performs its services only partially.
6.3 Claims of the CONTRACTOR pursuant to the preceding paragraph shall only exist to the extent that VALTECH MOBILITY is not fully liable in accordance with the statutory provisions or these GTC.
7. Place of Use and Performance / Passage of Risk on Delivery and Dispatch
7.1 Unless otherwise expressly stated in the offer, the place of performance and use shall be VALTECH MOBILITY’s business premises as determined by VALTECH MOBILITY. Deliveries are agreed as of VALTECH MOBILITY’s business premises. If VALTECH MOBILITY, at the request of the CONTRACTOR, dispatches the goods or works to a place other than the place of performance, the risk shall pass to the CONTRACTOR as soon as VALTECH MOBILITY has delivered the goods to the freight forwarder, carrier or other person or institution designated to carry out the dispatch. Shipments and returns are always made at the risk of the CONTRACTOR.
7.2 The contracting parties may agree that insurance shall be taken out for transport damage at the expense of the CONTRACTOR. There is no obligation to take out insurance.
7.3 Notwithstanding any agreements to the contrary, VALTECH MOBILITY shall be free to choose the means and route of transport without being obliged to choose the fastest and/or cheapest option.
8. Warranty for Defects
8.1 The CONTRACTOR’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 VALTECH MOBILITY shall always perform its services on the basis of the generally accepted rules of technology and the state of the art known to it during the execution of the project as well as with due diligence customary in the industry.
8.3 Insofar as the performance object is the development of software, the CONTRACTOR is aware that it is not possible according to the state of the art to provide completely error-free software development services. This criterion shall also be taken into account, in particular, in the determination of defects.
8.4 VALTECH MOBILITY warrants that program components/own developments developed by VALTECH MOBILITY are free from third-party rights that restrict or exclude the use of the contractual service for the contractually stipulated purpose. This does 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 CONTRACTOR. In this case, VALTECH MOBILITY assigns its warranty claims against its supplier to the CONTRACTOR. The CONTRACTOR is advised that the CONTRACTOR 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 object of performance is dependent on third-party software (e.g. operating system, browser) with regard to its operation or handling, it is only guaranteed that it is compatible with the thirdparty software named in the offer, insofar as none is mentioned here with the external software common at the time of the conclusion of the contract. VALTECH MOBILITY does not warrant that the performance object is compatible with later versions. The warranty also does not include the adaptation of the performance object to changed operating conditions 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 CONTRACTOR shall give written notice of defects by means of a comprehensible description of the error symptoms, proven by written records, hard copies or other documents illustrating the defects. This complaint must be made immediately, but at the latest within fourteen working days after discovery of a Valtech Mobility GmbH General Terms and Conditions (GTC) Status: 07/2019 5 defect, in the case of recognisable defects after delivery. The notice of defect must enable the defect to be reproduced. Legal obligations of the CONTRACTOR to examine and give notice of defects remain unaffected.
8.7 In the event of a defect, VALTECH MOBILITY shall initially only be obliged to subsequent performance. VALTECH MOBILITY may choose to remedy the defect either by repair or by subsequent delivery. If the performance object is the development of software, VALTECH MOBILITY shall satisfy its obligation to subsequent performance by making a new version of the performance object available to the CONTRACTOR. Subsequent performance of software components may also be effected by making a new program version available. The removal of defective software and/or the installation of a new version is not the subject of the subsequent delivery.
8.8 VALTECH MOBILITY shall bear the expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs, insofar as these expenses are not increased by the fact that the goods were taken to a place other than the original place of performance after delivery or were combined with other goods. Replaced parts become the property of VALTECH MOBILITY. The CONTRACTOR may not demand reimbursement of installation and removal costs within the scope of subsequent performance.
8.9 If the subsequent performance fails, the CONTRACTOR is entitled under the statutory conditions to demand a reduction or to withdraw from the contract.
8.10 VALTECH MOBILITY may refuse subsequent performance until the CONTRACTOR has paid the agreed remuneration to VALTECH MOBILITY, less a part corresponding to the economic significance of the defect.
8.11 If the CONTRACTOR asserts a defect against VALTECH MOBILITY and this defect cannot be determined or reproduced or the defect cannot be attributed to a warranty obligation of VALTECH MOBILITY after appropriate examination (apparent defect) and if the CONTRACTOR could have recognized this, the CONTRACTOR shall reimburse VALTECH MOBILITY for any costs incurred by VALTECH MOBILITY as a result of the defect.
9. Withdrawal / Termination
9.1 If VALTECH MOBILITY’s payment claim is endangered by the CONTRACTOR’s lack of ability to pay, VALTECH MOBILITY shall be entitled to refuse performance until the CONTRACTOR has effected payment or provided security for it. The payment claim of VALTECH MOBILITY shall be at risk in particular if
- the CONTRACTOR is in default of payment of the agreed remuneration with two consecutive invoices;
- VALTECH MOBILITY learns of an imminent insolvency of the CONTRACTOR, the opening of insolvency proceedings or provisional insolvency proceedings concerning the assets of the CONTRACTOR or the rejection of an insolvency petition.
If payment or provision of security is not made within 12 working days of a one-off request to do so, VALTECH MOBILITY shall be entitled to withdraw from the contract or terminate the contract and may demand, in addition to the remuneration for all services rendered to date, reimbursement of one fifth of the average monthly remuneration calculated on the basis of the average of the last three months. If the execution of the project began less than 3 months ago, the monthly average remuneration shall be calculated on the basis of the shorter duration of the project. VALTECH MOBILITY is at liberty to claim higher damages. The CONTRACTOR is permitted to prove that VALTECH MOBILITY did not incur any expense or damage at all or that the damage was less than the lump sum.
9.2 If VALTECH MOBILITY itself is not supplied, or is supplied incorrectly or not on time, although it has placed sufficient orders with reliable suppliers, VALTECH MOBILITY shall be released from its obligation to perform and may withdraw from the contract. This shall only apply if VALTECH MOBILITY informs the Valtech Mobility GmbH General Terms and Conditions (GTC) Status: 07/2019 6 CONTRACTOR about the unavailability of the service and the CONTRACTOR immediately reimburses any consideration already rendered.
10.1 The CONTRACTOR is obliged to accept a work and to inform VALTECH MOBILITY 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 different provision to this effect. Otherwise, the regulation in the milestone plan shall take precedence.
10.2 Insofar as the production of a work is owed as contractual performance, the CONTRACTOR shall be obliged to notify any defects found during acceptance without undue delay.
11.1 VALTECH MOBILITY shall have unlimited liability in the event of malice, intent or gross negligence in accordance with the statutory provisions.
11.2 Damages caused by VALTECH MOBILITY due to slight negligence shall only be compensated if this is a breach of an essential obligation, the fulfilment of which is essential for the proper execution of the contract and on the fulfilment of which the CONTRACTOR can regularly rely (cardinal obligation). In this case, VALTECH MOBILITY’s liability shall also be limited to the extent of the damage that VALTECH MOBILITY typically had to expect according to the circumstances known at the time of conclusion of the contract and in view of the nature of the contractual agreements.
11.3 VALTECH MOBILITY shall only be liable for the loss of or damage to data and their recovery if such loss could not have been avoided by the CONTRACTOR even through appropriate, proper data backup measures.
11.4 The foregoing exclusions and limitations of liability shall also apply to the benefit of VALTECH MOBILITY’s employees, representatives, organs and vicarious agents as well as other third parties employed by VALTECH MOBILITY for the performance of the contract.
11.5 Cases of legally mandatory liability (e.g. claims for damages under the Product Liability Act) and liability for damages resulting from injury to life, limb or health shall remain unaffected by the above limitations of liability.
12. Statute of Limitations
Subject to §§ 438 Para. 1 No. 2, 479, 634 a Para. 1 No. 2 of the German Civil Code (BGB), claims on account of a defect in accordance with the provisions of this GTC shall become time-barred one year after the statutory commencement of the limitation period, unless VALTECH MOBILITY is liable without limitation in accordance with the statutory provisions or the present GTC.
13. Retention of Title
13.1 VALTECH MOBILITY shall retain title to goods delivered by VALTECH MOBILITY until all claims arising from the business relationship, including future claims arising from contracts entered into at the same time or later, have been settled. This shall also apply if claims are included in a current account and the balance has been struck and acknowledged. The CONTRACTOR undertakes to handle the delivered goods with care and to insure them for the benefit of VALTECH MOBILITY against the usual risks (e.g. fire, water, storm, theft).
13.2 The CONTRACTOR is entitled to sell or process the goods in the ordinary course of business. The CONTRACTOR shall carry out any processing for VALTECH MOBILITY without VALTECH MOBILITY being obliged to do so. If the reserved goods are processed, combined or mixed with other goods, VALTECH MOBILITY shall in principle acquire a co-ownership share in the new goods, namely, if the reserved goods are processed in the ratio of the value (= gross invoice value including incidental costs and taxes) of the reserved goods to the new goods, if the reserved goods are combined or mixed in the Valtech Mobility GmbH General Terms and Conditions (GTC) Status: 07/2019 7 ratio of the value of the reserved goods to the value of the other goods. As soon as the property of VALTECH MOBILITY is lost due to mixing or combination, the CONTRACTOR shall transfer co-ownership to VALTECH MOBILITY pro rata.
13.3 The CONTRACTOR hereby assigns to VALTECH MOBILITY as security all claims against a purchaser or third parties arising from the resale, including those arising from the inclusion in current account relationships. After the assignment, the CONTRACTOR is authorized to collect the claims assigned to VALTECH MOBILITY. VALTECH MOBILITY reserves the right to revoke the authorization for resale and collection and to collect the assigned claims itself if the CONTRACTOR does not properly fulfil his contractual obligations towards VALTECH MOBILITY.
14. Intellectual Property Rights, Rights to Work Results
14.1 VALTECH MOBILITY shall remain the holder of inventions and the associated IP rights that were present in its organization prior to commencement of the contractual work (“Background IP”). Insofar as VALTECH MOBILITY’s Background IP is required for the exploitation of the work result (as defined under Section 14.2), the CONTRACTOR shall be granted a non-transferable right of use, limited in terms of remuneration, scope, time and content, which may be revoked at any time and which enables the CONTRACTOR to use the work result for the agreed purpose.
14.2 Unless expressly agreed otherwise, VALTECH MOBILITY is and remains the owner of the rights to all results, including all inventions, know-how, test and development reports, suggestions, ideas, drafts, designs, concepts, samples and models which it achieves within the scope of its development and service results (hereinafter referred to as “WORK RESULTS”). The same applies to the illustrations, drawings, calculations and other documents made available to the CONTRACTOR as well as to all information received since the start of the contract negotiations with regard to the activity, performance and goods of VALTECH MOBILITY. These may not be made accessible to third parties without the prior written consent of VALTECH MOBILITY.
14.3 To the extent that the WORK RESULTS are eligible for IP protection, only VALTECH MOBILITY shall be entitled to register in its own name, to pursue and to drop the intellectual property rights.
14.4 To the extent that the WORK RESULTS are protected by copyrights to which VALTECH MOBILITY is entitled, VALTECH MOBILITY shall grant the CONTRACTOR rights of use enabling the CONTRACTOR to use the WORK RESULTS for the agreed purpose.
15.1 All information, knowledge, results, data, and documents that the CONTRACTOR receives from VALTECH MOBILITY or in any way acquires from VALTECH MOBILITY in the context of and/or in the course of performance of contracts entered (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 CONTRACTOR acquires from VALTECH MOBILITY.
15.2 The CONTRACTOR agrees to preserve the secrecy of CONFIDENTIAL INFORMATION as an industrial and trade secret within the meaning of the Act Against Unfair Competition even after the termination of the contract and to use it only for purposes of the contract entered into and the performance thereof, and only within the limits envisaged by these GTC and by contracts entered into. Its disclosure within the CONTRACTOR’s organization shall be limited to that which is necessary for performance of the contract (disclosure on strict “need-to-know” basis).
15.3 The CONTRACTOR 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 Valtech Mobility GmbH General Terms and Conditions (GTC) Status: 07/2019 8 to third parties, whether gratuitously or for consideration, as well as viewing or examination by third parties.
15.4 No other use by the CONTRACTOR and no disclosure by it to third parties is permitted without VALTECH MOBILITY’s express prior written consent.
15.5 The CONTRACTOR shall ensure that all natural and juridical persons who acquire knowledge of CONFIDENTIAL INFORMATION in the course of performance of contracts entered into are bound by non-disclosure obligations analogous to those set forth herein. The CONTRACTOR shall ensure that, to the extent legally possible, the obligations to be imposed hereunder on the CONTRACTOR’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.
15.6 The obligation to maintain secrecy regarding and refrain from using CONFIDENTIAL INFORMATION
lapses to the extent
• the CONTRACTOR 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 CONTRACTOR, or
• the information is substantially the same as information that was at some point disclosed or made available to the CONTRACTOR by an authorized third party.
15.7 The CONTRACTOR may refer to the business relationship with VALTECH MOBILITY in advertising or in other documents only with the prior written consent of VALTECH MOBILITY. The same applies to the use of trademarks, trade names and other designations of VALTECH MOBILITY.
15.8 The foregoing shall not limit or prejudice any more extensive non-disclosure obligations that the CONTRACTOR may have to VALTECH MOBILITY pursuant to other non-disclosure commitments. A nondisclosure agreement separately entered into shall in particular take precedence over the provisions above set forth. In the event the contract is entered into, the CONTRACTOR agrees to sign VALTECH MOBILITY’s non-disclosure agreement, if it has not already done so.
16. Termination of Contract by the CONTRACTOR
16.1 The CONTRACTOR may terminate a contract for work and services in writing without stating reasons until completion of the work. If the CONTRACTOR terminates the contract, VALTECH MOBILITY shall be entitled to demand the agreed remuneration. However, VALTECH MOBILITY must take into account the expenses saved as a result of the cancellation of the contract or which it acquires or maliciously refrains from acquiring through the other use of its labour. It is assumed that VALTECH MOBILITY shall then be entitled to 5% of the agreed remuneration for the part of the work not yet performed.
16.2 Upon termination of the contract, VALTECH MOBILITY shall hand over to the CONTRACTOR the WORK RESULTS achieved up to the time of termination after the CONTRACTOR has paid the remuneration claim, any costs of availability and all other outstanding services.
17. English Version
This English version of these GTC 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 CONTRACTOR is valid unless done with VALTECH MOBILITY’s prior written consent. VALTECH MOBILITY will only refuse such consent when its legitimate interests outweigh those of the CONTRACTOR. By way of derogation from sentence 1, an assignment of claims for the payment of money without VALTECH MOBILITY’s consent is valid; in such cases VALTECH MOBILITY may, however, at its discretion, discharge its liability by making payment to either the CONTRACTOR or the third party assignee.
The CONTRACTOR is permitted to declare set-off only by reason of claims against VALTECH MOBILITY that are undisputed or the subject of a final judgment.
20. Applicable Law and Place of Jurisdiction
20.1 DThese GTC and the entire legal relationship between the contracting parties shall be governed by the law of the Federal Republic of Germany excluding the U.N. Convention on the Sale of Goods.
20.2 Requirements and effects of the retention of title according to the present GTC are, however, subject to the law of the respective location of the object, insofar as the choice of law made is inadmissible or ineffective in favour of German law.
20.3 The place of jurisdiction for all claims arising from or in connection with these GTC and the entire legal relationship between the contracting parties shall be the registered office of VALTECH MOBILITY. However, VALTECH MOBILITY shall be at liberty to assert claims against the CONTRACTOR at any other legal venue.
21. Written Form
21.1 For contracts/agreements concluded on the basis of these GTC, the written form shall apply; there are no oral collateral agreements. Amendments and additions hereto, including amendments to this clause, require a written agreement. 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.
21.2 Legally relevant declarations and notifications to be submitted to VALTECH MOBILITY by the CONTRACTOR after conclusion of the contract (e.g. setting of deadlines, reminders, exercise of design rights) must be made in writing to be effective.
22. Severability Clause
Should any of the provisions contained herein be or become invalid or unenforceable in whole or in part, the validity of the remaining provisions shall not be affected thereby. The contracting parties undertake to replace the invalid provision with a valid provision that comes as close as possible to the economic intent of the invalid provision. The same shall apply in the event of a gap.
Status: July 2019