Terms and conditions of sale and delivery of Lippok & Wolf GmbH, LIWO-Prüfautomation, 73642 Welzheim, Germany

Section 1: Scope of application

1. These terms and conditions of sale and delivery apply without exception to all our deliveries, services and quotes. These terms and conditions form an integral part of all contracts that we conclude with our contractual partners (hereinafter referred to as "customers") with respect to the goods or services we offer. They also apply to all future deliveries, services or quotes in relation to the customer, even if they are not separately agreed again.

2. The terms and conditions of customers or third parties are excluded even if we do not expressly object to them on a case-by-case basis. Even if we refer to a letter containing or referring to the terms and conditions of the customer or a third party, this shall not be construed as acceptance of these terms and conditions.

Section 2: Quotes and contract conclusion

1. All our offers are subject to change and non-binding, unless they have been expressly designated as binding.

2. Any information about the goods and services (e.g. weights, dimensions, values in use, capacity, tolerance and technical data) as well as any related representations (e.g. drawings and illustrations) are to be deemed approximate only unless their use for the contractually agreed purpose requires stricter conformity. Such information shall not be construed as guaranteed specifications, but rather as a description or identification of goods or services. Standard deviations and deviations based on legal requirements or representing technical improvements, or replacement of components by equivalent parts are permissible, provided that they do not impair usability for the contractually intended purpose.

3. We reserve the right of ownership or copyright to any quotes, cost estimates, drawings, illustrations, calculations, brochures, catalogues, models, tools, as well as any other documents and resources provided to the customer. Without our express consent, the customer may not give third parties access to these items or their content, and neither may he disclose them to third parties or use/reproduce them whether directly or indirectly through third parties. At our request, the customer shall return all these items, including any copies and destroy any materials that are no longer needed by him in the ordinary course of business, or if negotiations do not lead to a contract conclusion.

Section 3: Prices and payments

1. The prices apply to the scope of supply and services specified in the order confirmation. Additional or special services shall be invoiced separately. Prices are quoted in Euros ex works (EXW 73642 Welzheim, Germany; Incoterms® 2020). They do not include customs, taxes and other charges or the cost of customs formalities payable on exports.

2. Unless agreed otherwise in writing, invoice amounts are payable in full within thirty days of the invoice date. The effective date of payment is the date the payment is credited to our account. Cheques shall only be accepted as payment after they have been cleared.

3. Set-offs against counterclaims of the customer or the retention of payments due to such claims is only permissible if the counterclaims are undisputed or have been legally established.

4. We are entitled to deliver any outstanding goods and services only against advance payment or security if after the conclusion of the agreement, we become aware of circumstances, which are likely to have an adverse effect on the creditworthiness of the customer and which put the payment of our outstanding claims arising from the respective contractual relationship (including other specific contracts, which are subject to the same master agreement) at risk.

Section 4: Delivery, packaging and delivery dates

1. Unless otherwise agreed, deliveries are ex works (EXW 73642 Welzheim, Germany, Incoterms® 2020).

2. Any time limits and dates proposed by us for the supply of goods and services shall always be deemed approximate, unless a fixed date or period has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or any other third party commissioned with transportation.

3. The goods shall be packaged in conformity with standard commercial practice. We do not accept any liability for the most cost-effective shipping or shortest transportation times. We shall only supply special protective devices if this was expressly agreed. We shall insure the consignment against theft, breakage, transport, fire and water damage or other insurable risks only at the express request of the customer and at his expense.

4. Without prejudice to our rights arising from default on the part of the customer, we may demand from the customer an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period during which the customer does not fulfil his contractual obligations towards us (in particular information and cooperation obligations).

5. We do not accept any liability for impossibility of delivery or for delays in delivery if these are caused by force majeure or other events not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, legal lock-outs, lack of manpower, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the lack of, incorrect or delayed delivery by suppliers) which are beyond our control. If there are obstacles of a temporary nature, the delivery or performance periods shall be extended or the delivery or performance dates postponed by the period of the hindrance plus an appropriate lead time.

6. Should such events within the meaning of Section 4 (5) render the supply of goods or services difficult or impossible, and the difficulty is not only of a temporary nature, we shall be entitled to rescind the agreement. If the customer cannot be reasonably expected to accept the delivery or performance, he may rescind the contract by sending a written notice to us without undue delay.

7. We are only entitled to make partial deliveries, if

   • the customer can reasonably use the partial delivery for the purpose intended under the contract,

   • we are in the position to deliver the remainder of the ordered goods, and

   • the customer does not incur any considerable additional costs (unless we agree to bear these costs).

8. If we are in default with a delivery or service or if a delivery or service, for whatever reason, becomes impossible for us, our liability for damages will be limited in accordance with Section 9 of these standard terms and conditions of delivery.

9. For installation and commissioning as well as for training the personnel, we can provide one or more special technicians against payment of the hourly rates applicable in each case for the working time spent and reimbursement of travel and subsistence costs. We shall provide the technicians based on the possibilities open to us, and we cannot guarantee any particular date. The technicians may only be used for the actual commissioning work and are to be called up by the customer when all preparations for installation have been made. Any auxiliary personnel and equipment required shall be made available to the technician. We reserve the right to claim additional damages for waiting times caused by insufficient preparation.

Section 5: Place of performance, transfer of risk, acceptance

1. Unless otherwise agreed, the place of performance for all obligations arising from the contractual relationship shall be determined in accordance with clause EXW 73642 Welzheim, Germany, Incoterms® 2020. Where the scope of services includes installation, the place of performance is the location where the installation is to take place.

2. The transfer of risk shall be governed by clause EXW 73642 Welzheim, Germany, Incoterms® 2020.

3. Clause EXW 73642 Welzheim, Germany, Incoterms® 2020 applies with regard to any costs incurred after the transfer of risk. Where we store the contractual items, we shall charge 0.25% of the invoice amount for every full week of storage. The parties shall be entitled to prove that the actual storage costs incurred were higher or lower.

4. Where acceptance is required, the item shall be deemed to have been accepted, if

1. the delivery, and where the scope of services includes installation, the installation have been completed,

2. we have communicated this to the customer with reference to the acceptance provisions set out in Section 5 (4) and have requested for his acceptance,

3. four weeks have elapsed since the delivery or installation, or the customer has started to use the purchased goods (e.g. has put the system into service) and in this case, twelve working days have passed since the delivery or installation, and

4. the customer has not accepted the performance during this period for another reason other than the existence of a defect notified to us, which would make the use of the item impossible or very difficult.

Section 6: Testing Phase

1. To test the machines at our premises, the customer shall provide sample material free of charge at our request.

2. We shall not be held liable for the incompleteness or defectiveness of sample material returned to the customer.

Section 7: Warranty, material defects

1. The warranty period is one year from the time of delivery or if acceptance is required, from the time of acceptance.

2. Upon delivery, the supplied items shall be promptly inspected by the customer or a third party designated by him. The items shall be deemed to have been approved unless we have received a written notice of obvious defects or other defects, which were identifiable during an immediate, careful inspection within seven working days after delivery of the delivery item or otherwise within seven working days after discovery of the defect or any earlier point in time at which the defect was identifiable to the customer during normal use of the delivery item without closer investigation. At our request, the defective contractual item shall be returned to us carriage paid. If the complaint regarding the defective goods is legitimate, we shall bear the costs of the most cost-effective method of shipment; this shall not apply if the costs increase because the contractual item is located at a location other than the location of the intended use.

3. If a defect is due to our fault, the customer may claim damages under the conditions specified in Section 9.

4. In the event of defects in components of other manufacturers, which we are unable to remedy for legal licensing or factual reasons, we shall, at our discretion, assert our warranty claims against the manufacturers and suppliers for the customer's account or assign them to the customer. Warranty claims against us for such defects shall only exist under the other conditions and in accordance with these standard terms and conditions of delivery when asserting the claim against the manufacturer or supplier before the courts was unsuccessful or was likely to be unsuccessful due to insolvency. During the legal dispute, the limitation period for the relevant warranty claims of the customer against us shall be suspended.

5. The warranty is void if the customer modifies or engages a third party to modify the contractual item without our consent and as a result, it becomes impossible or unreasonably difficult to rectify the defect. In any event, the customer shall bear the additional costs of rectifying the defect incurred as a result of modifications.

6. A delivery of used items agreed with the customer in individual cases shall be made with the exclusion of any warranty for material defects.

Section 8: Intellectual property rights

1. In accordance with Section 8, we represent and warrant that the contractual items are free of industrial property rights or copyrights of third parties. Each party shall promptly notify the other party in writing if claims are asserted against them for the infringement of such rights.

2. Where the contractual items infringe an industrial property right, we shall, at our own discretion and at our expense, replace or modify the contractual item, to a degree, that it will no longer infringe any third party rights while the contract item shall continue to fulfil its agreed function or provide the customer with a licence agreement or usage right. If we fail to do so within a reasonable period of time, the customer shall be entitled to rescind the contract or to an appropriate reduction in the purchase price. Any claims for damages by the customer are subject to the restrictions of Section 9 of these standard terms and conditions of delivery.

3. In the case of infringements caused by products supplied by us or other manufacturers, we shall assert claims, at our own discretion, against manufacturers or primary suppliers for the account of the customer or assign them to the customer. Under Section 8 of this agreement, claims against us shall only apply, if asserting the claim against the manufacturer and supplier before the courts was unsuccessful or was likely to be unsuccessful due to insolvency.

Section 9: Liability for damages

1. In terms of culpability, our liability for damages, on whatever legal basis, in particular, due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and unlawful acts, is limited in accordance with provisions set out in this Section 9.

2. We shall not be liable for damage caused by negligence on the part of our organs, statutory representatives, employees or other vicarious agents, unless it constituted a breach of material contractual obligations. Material obligations include the obligation to deliver and install the contractual item free of any significant defects and in a timely manner as well as the duty to give advice, protection and the duty of care, which should enable the customer to use of the contractual item in accordance with the terms of the agreement or which serve the purpose of protecting the customer's property against material loss or damage or the life and soul of the personnel of the customer.

3. Insofar as we are liable for damages on the merits in accordance with Section 9 (2), this liability is limited to damage, which was foreseeable at the time of conclusion of the contract as a possible consequence of a breach of contract or which we should have foreseen if we had exercised reasonable care. Claims for indirect or consequential damage caused by defects in the contractual item shall be limited to damage, which can be typically expected when using the contractual item as intended.

4. In the case of negligence, our liability for personal injury, property or product damage is limited to an amount of EUR 5,000,000.00, our liability for financial losses is limited to EUR 250,000.00 and our liability for processing damage is limited to EUR 250,000.00 per claim (in accordance with the current liability insurance cover), even if this involves a breach of material contractual obligations.

5. The above exclusions and limitations of liability apply mutatis mutandis to our organs, legal representatives, employees and other vicarious agents.

6. Where we provide technical information or advice, and this information or advice falls outside the scope of services provided under the contract, the information or advice shall be provided free of charge and to the exclusion of any liability. This includes in particular the provision of parameterisation data free of charge.

7. The limitation of liability under Section 9 of these terms and conditions does not apply to our liability for malicious conduct, guaranteed characteristics, loss of life or injury, or under the Product Liability Act.

Section 10: Software use

If software is included in the scope of supply and services, the customer shall be granted a non-exclusive right to use the supplied software, including its documentation. The software shall be licensed for use solely in conjunction with the contractual item for which it is intended. It is prohibited to use the software on more than one system. The customer may only copy, edit or translate the software or convert the object code into the source code to the extent permissible by law (Articles 69a et seq. of the German Copyright Act). The customer undertakes not to remove or change manufacturer information and in particular, copyright notices without our prior express consent. We or the software supplier retain all other rights to the software and the documentation, including copies. The granting of sub-licences shall not be permitted.

Section 11: Confirmation of arrival

In the case of intra-Community deliveries to an EU member state other than Germany, the customer shall submit a confirmation of arrival in accordance with the requirements of Article 17a of the Regulation implementing the VAT Act (UStDV), as amended, confirming that the subject of delivery has arrived in the other territory of the Community. Unless agreed otherwise, the customer shall use the template provided by us to submit the confirmation of arrival. The confirmation of arrival shall be signed by hand or transmitted by electronic means.

Section 12: Retention of title

1. The purpose of the retention of title agreed below is to secure all our current and future claims against the customer arising from this contractual relationship.

2. We retain the title to any goods we have supplied to the customer until all secured receivables have been settled in full. The products or any other goods replacing them under this retention of title clause shall be hereinafter referred to as reserved goods.

3. The customer shall store the reserved goods on our behalf free of charge.

4. The customer is entitled to dispose of the reserved goods in the ordinary course of business, until the occurrence of an enforcement event (paragraph 9). Any attachment of goods or transfer of ownership by way of collateral is not permitted.

5. If the reserved goods are processed by the customer, it is agreed that the processing shall take place in our name and for our account as the manufacturer and that we directly acquire ownership or - if the processing involves materials from several owners or if the value of the processed object is higher than the value of the reserved goods - the co-ownership (fractional ownership) of the newly created object in relation to the value of the reserved goods to the value of the newly created object. Where we do not acquire ownership as described above, the customer hereby transfers to us as security his future ownership interest - or co-ownership interest in the above proportion - in the newly created object. Where the reserved goods have been combined or inseparably mixed with other objects to form a single object and one of the other objects is considered to be the main object, we shall transfer the proportionate co-ownership interest in the single object in the proportion specified in clause 1 to the customer.

6. The customer hereby assigns to us by way of security any claims arising from the resale of reserved goods against the buyer - or in proportion to our co-ownership interest in the reserved goods. The same shall apply to other claims, which may replace the reserved goods or arise in connection with the reserved goods, such as insurance claims or claims from unlawful acts in the event of loss or destruction. We hereby authorise the customer revocably to collect the claims assigned to us in his name. We may only withdraw this authorisation in the event of enforcement.

7. In case of attempts by third parties to seize the reserved goods, in particular, by means of assignment, the customer shall promptly notify them that the reserved goods are our property to allow us to enforce our property rights. If the third party is not in the position to reimburse us for the judicial and extrajudicial costs, the customer shall be liable for the resulting loss.

8. We shall release the reserved goods as well as the goods or claims replacing them upon request at our own discretion, if their value exceeds the amount of the secured claims by more than 50%.

9. Where the customer is in breach of contract, in particular, by falling into arrears with payments (enforcement event), we will be entitled to rescind the contract and recover the reserved goods.

Section 13: Final provisions

1. The place of jurisdiction for any disputes arising from the business relationship between us and the customer shall be, at our discretion, 73642 Welzheim or the customer's registered office. The sole place of jurisdiction for legal action against us is Welzheim, Germany. Mandatory legal provisions on exclusive jurisdiction shall not be affected by this provision.

2. The relationship between us and the customer is governed and shall be construed solely in accordance with the laws of the Federal Republic of Germany, with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG).

3. The parties hereby agree that in the case of any disputes, the claimant shall make a serious attempt to settle the dispute by mediation before any legal proceedings can be initiated. The cost of mediation shall be shared equally between the parties.

4. In the case of any omissions from this agreement or these terms and conditions, the parties agree to supplement any omissions by effective provisions that approximate as closely as possible what the parties wanted or would have wanted in accordance with economic objectives of the agreement and the spirit and purpose of these standard terms and conditions if they had been aware of such omission.

    

   Notice: The customer hereby acknowledges that we store data collected during the contractual relationship for processing purposes in accordance with Article 28 of the Federal Data Protection Act, and we reserve the right to transfer the data to third parties to the extent necessary for the performance of this agreement.