General Terms and Conditions

Note: An English translation is provided herein for mutual convenience. In the case of any dispute or discrepancy between the German and English texts, the German version shall be taken as most recent and correct.

1. General

a) The following terms and conditions apply to all current and future deliveries of XAPI Software für Fertigungsautomation GmbH, unless other conditions have been agreed in writing.

b) By placing an order, the orderer accepts these terms and conditions. Differing conditions of the customer are not valid. Side agreements require the express written approval of XAPI Software für Fertigungsautomation GmbH in order to be valid.

c) The terms and conditions apply only to entrepreneurs in the sense of § 310 I BGB.

2. Quotation and Order

a) Our offer is non-binding.

b) A contract is only concluded by our written order confirmation.

c) The supplier reserves ownership rights and copyrights to cost estimates, drawings and other offer documents; they may not be made accessible to third parties.

d) The scope of delivery is described in the order confirmation. Unwritten hardware and software are not included in the scope of delivery. If the order confirmation is not objected to within 10 working days, then its content shall be deemed a binding object of the contract.

e) The software scope can only be roughly outlined in the order confirmation. If a specification is created after the order confirmation, then the content of the specification is considered to be a binding delivery. Will the scope of services be changed, XAPI Software für Fertigungsautomation GmbH reserves the right to adjust prices and adjust delivery dates. The specification is recognized by the purchaser and the supplier by legally binding signatures.

3. Prices and Payments

a) Unless otherwise stated in the order confirmation, our prices in Euro apply "ex works" excluding packaging, freight, insurance and customs.

b) The VAT is not included in our prices. It will be shown separately in the bill at the statutory rate on the date of invoicing.

c) Services are to be paid immediately upon receipt of the invoice. All other invoices of XAPI Software für Fertigungsautomation GmbH are to be paid net within 14 days of the invoice date, unless otherwise agreed. The legal rules apply regarding late payment.

d) Set-off rights are only available to the purchaser if his counterclaims have been legally established or are undisputed or acknowledged by us. He is entitled to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.

4. Delivery Time

a) The delivery period begins with the order confirmation, but not before receipt of all documents required for the order confirmation and complete clarification of the technical requirements and receipt of the agreed advance payment. If all documents and clarifications as well as the advance payment are not received in time, the delivery period shall be extended accordingly.

b) If the scope of service is subsequently changed at the request of the customer, the price and the delivery date must be re-agreed.

c) The Supplier shall only be in default if the Purchaser has given him a reasonable grace period in advance and the Supplier has culpably allowed this period to elapse without delivering.

d) If we are prevented from fulfilling our obligations despite the reasonable exercise of due care in the circumstances of the case, regardless of whether these circumstances occur to us or to our suppliers, we shall be entitled to rescind the contract. If the delivery and service becomes impossible due to the circumstances mentioned above, XAPI Software für Fertigungsautomation GmbH shall be released from the delivery obligation and all other related obligations. XAPI GmbH will inform the customer immediately about the occurrence of such events.

e) If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred in this respect, including any additional expenses. Further claims are reserved.

5. Delivery, Transfer of Risk and Approval

a) Partial deliveries are permitted.

b) The risk passes to the purchaser as soon as the readiness for dispatch of the delivery item is indicated, at the latest, however, when the goods have left the plant of XAPI Software für Fertigungsautomation GmbH. This also applies if carriage paid delivery, installation and commissioning has been agreed by the supplier.

c) The customer is obliged to accept the delivery items immediately after delivery. If assembly and commissioning are included in the scope of delivery, acceptance must be carried out immediately after installation or after completion of the first test run. Minor defects that do not materially affect the function do not justify a refusal to accept.

d) The system is deemed to have been accepted when the customer starts production with the delivery items.

e) In the event of default in acceptance, the customer is obliged to reimburse the supplier for all costs incurred as a result.

6. Warranty

a) The warranty for hardware is 12 months and begins with the intended use. The warranty for software is 24 months and starts from acceptance, but no later than 6 weeks after hardware delivery.

b) Complaints due to incomplete deliveries or externally recognizable defects of the delivery item shall be submitted in writing to XAPI Software für Fertigungsautomation GmbH no later than 8 days after receipt of the delivery item, such due to hidden defects immediately after their discovery.

c) In the case of complaints, payments of the customer may be withheld to an extent that is in reasonable proportion to the defects that have occurred. The orderer can withhold payments only if a notice of defect is asserted, over whose legitimacy no doubt can exist. If the notice of defects was wrongly made, we are entitled to demand compensation for expenses incurred by the customer.

d) Failure to remedy the defect or is it not provided within a reasonable time or is refused, the purchaser - without prejudice to any claims for damages under Section 8 - the right to either demand a reasonable reduction of the remuneration or the cancellation of the contract.

e) In addition, the supplier does not guarantee the uninterrupted and error-free functioning of the programs, in particular not that all program errors can be eliminated if the usability of the programs is only marginally impaired.

f) At the request of the supplier, the purchaser is obliged to return the delivery item to XAPI Software für Fertigungsautomation GmbH at his own risk after the complaint has been made.

g) All warranty claims expire if work on the delivery items is carried out by third parties without the consent of XAPI Software für Fertigungsautomation GmbH.

h) For claims for damages, item 8 (other claims for damages) applies. Weitergehende oder andere als die in dieser Ziffer 6. geregelten Ansprüche des Bestellers gegen den Lieferer und dessen Erfüllungsgehilfen wegen eines Mangels sind ausgeschlossen.

7. Right of use of programs

a) All rights to programs for equipment and computer systems, in particular copyright and industrial property rights, remain with the supplier.

b) The Purchaser receives the non-exclusive and non-transferable right to use the programs on the hardware specified in the contract or purchased with this contract. Any further use requires a separate written agreement.

c) The right of use of the customer is not limited.

8. Other claims for damages

a) Claims for damages and claims for reimbursement of expenses of the purchaser (hereinafter: claims for damages), for whatever legal reason, in particular due to breach of duties arising from the contractual relationship and from tort, are excluded.

b) This does not apply to the extent that liability is mandatory: for example, under the Product Liability Act, in cases of intent, gross negligence, injury to life, limb or health due to the violation of essential contractual obligations. However, the claim for damages for the breach of essential contractual obligations is limited to the contractually typical, foreseeable damage, insofar as there is no intent or gross negligence or liability for injury to life, limb or health. A change in the burden of proof to the detriment of the customer is not connected with the above regulations.

9. Retention of title

a) The goods remain the property of the supplier until the fulfillment of all claims against the customer arising from the business relationship.

b) Delivery items may be sold or processed by the business and not pledged. He hereby assigns to the Supplier all claims which he, as long as retention of title exists, shall only accrue to Buyer or against third parties in ordinary resale, irrespective of whether the reserved property is resold without or after processing or transformation. The purchaser is also authorized to collect these claims after the assignment. The powers of the supplier to collect the claims themselves remains unaffected; however, the supplier undertakes not to collect the claims as long as the customer duly fulfills his payment obligations.

c) The Supplier undertakes to release the securities due to him insofar as their value exceeds the claims to be secured, insofar as these have not yet been settled, by more than 25%.

d) The purchaser is obliged to assert and safeguard all rights of XAPI Software für Fertigungsautomation GmbH from the security conditions to any third party, in particular to point out the property of XAPI GmbH in the event of seizure threats and to notify XAPI Software für Fertigungsautomation GmbH immediately of any seizure or other impairment of the ownership rights.

e) If the purchaser falls into arrears with his payment obligations to XAPI Software für Fertigungsautomation GmbH or if he violates any of the obligations arising from the agreed retention of title, the entire remaining debt will become due immediately. In this case, XAPI Software für Fertigungsautomation GmbH is entitled to demand the return of the delivery item and to collect it from the orderer without having to withdraw from the contract beforehand. The purchaser has no right to possession. Withdrawal of the delivery item shall only be deemed to be a withdrawal from the contract if XAPI Software für Fertigungsautomation GmbH expressly confirms this in writing. In this case, XAPI Software für Fertigungsautomation GmbH is also entitled to inform the purchaser's customers of the assignment of the purchaser's claims to XAPI Software für Fertigungsautomation GmbH and to collect the claims. In the event of default of payment by the purchaser, XAPI Software für Fertigungsautomation GmbH is entitled to withdraw from the contract or to claim damages for non-performance.

10. Fulfillment

a) Place of performance for deliveries and payments - as well as bill of exchange - as well as place of jurisdiction for all disputes arising directly from the contractual relationship is our place of business.

b) The supplier is also entitled to sue at the customer's headquarters.

Speyer, 23.1.2018