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General business, delivery, and payment conditions of exapture GmbH

1. General Terms and Conditions

These general business, delivery, and payment conditions are valid for all contracts concluded between exapture and the customer, as well as for all other agreements that are reached within the scope of the business relationship. The customer’s general terms and conditions shall explicitly not become part of the contract, even if exapture does not explicitly oppose them. In the event that the customer does not want to accept the following general business and delivery terms and conditions, he shall give exapture prior written notification accordingly. This shall also apply if the customer has stipulated the application of a retention of title in his own terms and conditions.

2. Quotations and Contractual Documents

2.1. Quotations submitted by exapture are always without obligation and revocable as long as they have not been accepted as legally binding.

2.2. All property rights and copyrights pertaining to cost estimates, drawings, and other quotation documents shall remain with exapture unless otherwise agreed.

2.3. Minor modifications or differences in the delivered services that are customary in the trade and do not impair the intended use shall be permitted provided they are not unreasonable for the customer and take the reasonable interests of exapture into account.

3. Terms of Payment and Prices

3.1. The prices specified in the order confirmation are binding. In the event that such information is not given, the price list shall apply that is valid when the order is received. Unless otherwise agreed, the prices stipulated by exapture are ex company headquarters. The respective statutory level of value added tax shall additionally apply to the prices. The customer shall pay the costs of packaging and shipping. Additional deliveries and services shall be calculated separately.

3.2. All invoices from exapture are to be paid within seven days after the date of the invoice. The date on which payment is received by exapture shall be decisive. In the event of arrears, exapture shall be entitled to retain further supplies and services. In the event of late payment, exapture shall be entitled to charge interest in the amount of 5% above the currently valid base rate.

3.3. Offsetting against counterclaims shall not be permitted unless the counterclaim has been acknowledged by exapture, is legally valid, or is ripe for adjudication.

3.4. In the event that a deterioration of the customer’s financial situation arises that has an adverse effect on his credit standing, or if such circumstances become known to exapture, exapture shall be entitled to demand immediate payment of all further claims against the customer, as long as they are not subject to objection, and exercise a right of retention against all claims made by the customer, including those that are based on other contracts, or demand that the customer makes concurrent payment against the supply of services or provides securities.

4. exapture sales partners

4.1 expature has an agreement with sales partners about marketing products and services. As far as one partner conveys products and services from exapture to his customers, only the terms for the agreement that were made between partner and customer apply. Exapture is not responsible for business activities or commitments that are made by the partner towards the customer as well as for the products and services that are offered and concluded with the partner’s own contracts.

4.2 If exapture has negotiated individual prices for certain products with one of its customers but delivers these in parts or completely through its partner, it will not be allowed that the partner uses different prices than the agreed ones between exapture and the customer. Any eventually existing pricelist of the partner or individual arrangements do not apply in this case.

5. Delivery and Shipping

5.1. The place of performance and fulfillment for the contractual obligations of exapture is its operating facility.

5.2. The delivery dates stipulated by exapture are estimates. The delivery period begins with the date of the order confirmation. Partial deliveries are permissible within a reasonable scope and may be invoiced separately.

5.3. If, after placing an order, the customer requests changes or additions to the order, or if other circumstances arise which render it impossible for exapture to observe the delivery date, even if exapture is not responsible for these circumstances, the delivery date shall be postponed by a reasonable period of time.

5.4. In the event that exapture is prevented from fulfilling the contract on time due to, for example, procurement, fabrication, or delivery failures either with exapture or its suppliers, general principles of law shall apply provided that, after expiration of one month, the customer can set a grace period of six weeks. If noncompliance with a binding delivery date is demonstrably due to force majeure, mobilization, war, revolts, strike, or lockouts, or other circumstances for which exapture is not responsible according to general principles of law, the delivery date shall be reasonably extended.

5.5. If exapture is wholly or partly unable to fulfill a contract due to the aforementioned reasons, it shall be freed from its delivery obligation.

5.6. exapture is considered to have defaulted on a delivery only if the customer, within a reasonable period after the delivery is due, submits a written reminder to make the delivery.

5.7. The choice of shipping route and the type of shipping is entirely at exapture’s discretion. The customer shall be obliged to examine the goods immediately on receipt and immediately notify exapture in writing of any visible transport damage as well as damage to the packaging. The same shall apply to hidden damage. If, due to the omission of this obligation, exapture loses its claims against the insurance company or the subcontractor, the customer shall be liable for all costs that result from this violation of obligation. The risk passes to the customer as soon as the goods leave the factory or warehouse.

5.8. exapture shall be liable for inappropriate packaging only as a result of its own gross negligence and in the event of gross negligence on the part of its legal representative or vicarious agent.

6. Retention of Title

6.1. exapture retains title (reserved goods) to all goods it has delivered until all legitimate claims resulting from the business relationship have been completely fulfilled. This also applies when the purchase price has been paid for certain goods specified by the customer because the reserved property acts as security against the overall receivables balance due. The customer shall be obliged to treat all goods that belong to exapture with due care.

6.2. The customer shall be obliged to obtain proper insurance cover for the goods on which exapture retains title (i.e. theft, fire, water, and low-voltage insurance), as well as to provide exapture with proof of such cover when requested to do so. In the event of damage, the customer’s insurance claim shall be deemed assigned to exapture. The customer shall not be entitled to dispose of goods that are under retention of title. In the event of attachments or seizures, the customer must inform exapture immediately in writing and must advise any third parties immediately about exapture’s retention of title in an appropriate form. If the customer nevertheless sells the delivery items and exapture should approve of this, the customer, on concluding the contract, assigns all claims against his purchasers to exapture. The customer shall be obliged to surrender to exapture all information necessary for the assertion of these rights and to render the required acts of cooperation.

6.3. The processing and handling of the reserved goods shall be carried out on behalf of exapture without any liabilities resulting therefrom for exapture. In the event that the customer combines, mixes, blends, or processes reserved goods with other goods or transforms them in any way, he shall immediately assign his rights of ownership or co-ownership of the new goods to exapture and keep them in safe custody for exapture with the due diligence of a responsible business. The new goods shall thus become reserved goods for the purpose of these conditions.

6.4. The customer is entitled to resell the reserved goods that are the property of exapture only in the normal course of business. Other disposals, particularly pledging and transfer of ownership by way of security, of the reserved goods are not permitted.

6.5. The customer’s authorization to sell the reserved goods, as well as to process, transform, mix, or blend them, and to collect the assigned claims shall lapse upon non-compliance with the terms of payment, unauthorized disposal, or if insolvency proceedings are applied for or instituted against the customer. In this case, exapture is entitled to immediately take possession of the reserved goods. The contract is canceled only if exapture states this expressly.

6.6. In the event of attempts by third parties to seize the reserved goods, the customer shall advise such parties of exapture’s title and inform exapture without delay.

7. Limitation of Liability

7.1. In cases of intent or gross negligence, exapture shall be liable in accordance with the statutory regulations. In cases of slight negligence, exapture is only liable if an obligation is violated, the fulfillment of which enables the contract to be carried out correctly at all, the violation of which jeopardizes the attainment of the purpose of the contract, and upon whose compliance the client may rely (cardinal obligation), or in the event of default or impossibility of performance. In the case of slight negligence, such liability is limited to losses that are predictable and/or typical. Liability for failure to provide guaranteed features, for malicious intent, for personal injuries, and for defects in title under the German Product Liability Act (Produkthaftungsgesetz) and the German Data Protection Act (Bundesdatenschutzgesetz) shall remain unaffected.

7.2. Any claims asserted against exapture under warranty or by reason of liability shall take reasonable account of the contributory negligence of the customer, including but not limited to insufficient error reporting or data backup. Data backup shall be deemed insufficient if the customer has, in particular, failed to make suitable provision by using state-of-the-art security measures against external agencies, especially computer viruses and other such phenomena, which could jeopardize individual pieces of data or entire data sets, or has neglected to commission exapture with appropriate measures.

8. Notification of Defects, Warranty, Liability, and Statutory Limitation

8.1. The customer must carefully inspect exapture deliveries that result from sales contracts or contracts for work and materials in regard to defects, inaccurate quantities, and so on. The customer must then immediately file detailed objections in writing no later than one week after transfer or delivery. If a defect present before transfer shows up only later (hidden defect), this defect must be claimed immediately in writing after its discovery, at the latest within two weeks. The same applies to the delivery of goods other than those ordered.

8.2. If the customer does not fulfill his obligation to inspect and give notice of defects in a timely manner, then all claims resulting from defects, incorrect quantities, and so on shall be excluded, unless exapture is found to have been purposefully negligible. The customer shall also lose the right to refuse acceptance as a result of such a failure to give notice of defects in a timely manner.

8.3. In the event that exapture is obligated to provide a warranty, it shall carry out subsequent improvement or replacement at its own discretion. Should the improvement or replacement fail to solve the problem after two attempts, the customer shall be entitled to choose a reduction of the purchase price or to cancel the contract.

8.4. In the event of a justified notification of defect, the customer may only exercise his right of retention if the difference between the defect and the contract price is reasonable and appropriate.

8.5. The customer shall lose all warranty claims if he improperly installs, stores, or handles the goods supplied by exapture, unless he can prove that such behavior was not the cause of the defect notified.

8.6. If exapture delivers a replacement or rectifies the defect, it shall be liable for the replaced or rectified goods as it is for the goods delivered initially according to these General Terms and Conditions.

8.7. Claims for compensation, for whatever legal reason, particularly including tort claims, shall be limited to the foreseeable damage that is typical of the contract. The liability of exapture, its legal representatives, and vicarious agents owing to gross negligence or malicious intent shall remain unaffected by this. Claims arising under the German Product Liability Act (Produkthaftungsgesetz) shall also remain unaffected.

8.8. All claims due to or in connection with defects are subject to a 12-month statute of limitation after delivery or acceptance of the goods. Claims due to tortious acts or malicious intent on the part of exapture shall remain unaffected by this.

8.9. exapture and the customer are in agreement that the explanations and descriptions contained in the manual and/or the price list do not represent an assurance of specific characteristics of either the hardware or the software.

8.10. The warranty shall not include the remedying of defects that arise due to normal wear, external influences, or incorrect operation. The warranty shall become void to the extent that the customer, without the consent of exapture, alters devices, elements, or additional equipment, or has them altered by third parties, unless the customer can prove unequivocally that the defects still in question have not been caused either entirely or in part by such alterations, and that the remedying of defects is not impeded by the alteration.

8.11. Withdrawal from the contract is not possible on the grounds of an insignificant defect.

8.12. Incompatibility between the hardware and accessories allows the contract to be terminated only if a defect can be identified in the hardware delivered, and no accessories from other manufacturers can be used.

8.13. If the customer has made a claim against exapture under the warranty and it transpires that either there is no defect or that the defect asserted does not obligate exapture to the warranty, the customer must reimburse exapture for all expenses incurred by exapture, to the extent that the customer is responsible for making a claim against exapture based on gross negligence or criminal intent.

8.14. The delivery of an instruction manual in English is permitted if the subject matter of the contract has not yet been fully localized for the respective market. The same shall apply if the subject matter of the contract is generally only available as an English version.

8.15. No liability shall be assumed with regard to the suitability of the software delivered for the customer’s purposes or its compatibility with the user’s existing software.

8.16. Payment for the supply of manuals and documentation in addition to the written material or program description supplied with the software, and in addition to the user guidance implemented in the software and/or online help function, or initial training is due only if this has been expressly agreed in writing between the parties. In the event that the parties have reached such an express agreement, it shall not cover the content, language, or scope of any manual and/or documentation to be expressly supplied, and the provision of a quick user guide is adequate, unless the parties have agreed upon further specifications in writing.

8.17. Unless expressly agreed otherwise in writing, the hardware and software shall be delivered in the respective standard license and documentation configuration specified by the manufacturer.

9. Damages and liability

 

Unless specified otherwise in these General Terms and Conditions, other claims for damages, in particular those due to tortious acts, are excluded, unless the damage was caused as a result of deliberate or grossly negligent conduct on the part of exapture, its legal representatives, or vicarious agents. This shall also apply to claims against legal representatives or vicarious agents of exapture in person.

10. Confidentiality

exapture and the customer mutually agree to keep all business and trade secrets of the other party confidential for an unlimited period of time, and not to disclose them to third parties or to utilize them in any way. Any documents, drawings, or other information that the other contracting party obtains as a result of the business relationship may only be used by the party within the scope of the corresponding purpose of the contract.

11. Evidence Clause

Data that is stored by exapture in electronic registers or in any other electronic format shall be considered valid and admissible evidence for verifying data transfer, contracts, and payments effected between the parties.

12. Property Rights

Without the express authorization of exapture, the customer is not permitted to export goods purchased from exapture to countries outside the EU. Additionally, the customer must observe all relevant export regulations, especially the provisions of the German Foreign Trade and Payments Regulation (Aussenwirtschaftsverordnung) and any other applicable regulations under US jurisdiction.

13. Miscellaneous Provisions

13.1. Should individual provisions of these General Terms and Conditions be or become partly or wholly legally invalid, the validity of the remaining provisions shall not be affected by this. Instead, the invalid provision or provisions shall be replaced by those that come closest to the intended purpose.

13.2. There are no collateral agreements. Any supplements or changes to the contract must be made in writing and shall only become effective once they have been confirmed in writing. This shall also apply to the cancellation of this clause.

13.3. The customer may only assign his rights arising from a business relationship with exapture upon exapture’s written consent. The customer may only offset against a purchase price claim with approved or legally enforceable counterclaims.

13.4. As far as permitted by law, the place of jurisdiction shall be at the headquarters (principal place of business) of exapture in the Federal Republic of Germany. Only German law applies.

exapture GmbH - Berlin, 01.04.2019