AGB

General Terms and Conditions

I. Validity of the terms and conditions

Exacom’s deliveries, services and offers are made exclusively on the basis of these Terms and Conditions. They shall therefore also apply to all future business relations, even if they are not expressly agreed again. These terms and conditions shall be deemed accepted at the latest upon acceptance of the goods or services. Counter-confirmations of the buyer/orderer with reference to his terms and conditions of business or purchase are hereby rejected.
Deviations from these Terms and Conditions shall only be effective if confirmed by Exacom in writing.

II Offer and conclusion of contract

1 Exacom’s offers are subject to change and non-binding. Declarations of acceptance and all orders require Exacom’s written confirmation to be legally effective. The same applies to supplements, amendments or collateral agreements.
these General Terms and Conditions are an integral part of any offer made by Exacom.
employees of Exacom are not authorised to make verbal collateral agreements or to give verbal assurances that go beyond the content of the written contract.

III. prices/price fixing

Unless otherwise stated, Exacom shall be bound by the prices contained in its offers for 30 days from the date of the offer. Unless otherwise agreed, prices are quoted in Euro ex works Hanover, excluding packaging, plus the applicable statutory value added tax and statutory delivery charges.
Unless otherwise agreed, the prices of the Exacom price list valid at the time of order confirmation by Exacom shall apply.

IV. Time of delivery and performance

Delivery periods and dates stated by Exacom are generally non-binding, unless Exacom expressly states them as binding in writing. The delivery periods commence upon receipt of the order confirmation, but not before clarification of all technical questions and the timely and proper fulfilment of all obligations of customer. The defence of non-performance of the contract remains reserved. Partial deliveries are permissible and will be invoiced separately.
Exacom shall not be responsible for delays in delivery and performance due to force majeure and due to events that make delivery significantly more difficult or impossible for Exacom – including, but not limited to, strikes, lockouts, shortages of raw materials, traffic disruptions, weather conditions, official orders, etc., even if they occur at Exacom’s suppliers – even in the case of bindingly agreed deadlines and dates. They entitle Exacom to postpone the delivery or service for the duration of the hindrance for a reasonable start-up period or to withdraw from the contract in whole or in part due to the part not yet fulfilled.
If Exacom is responsible for failure to meet bindingly agreed deadlines and dates or is in default, Customer shall be entitled to compensation for delay in the amount of 1/2 % of the value of the delivery for each completed week of delay, but in total not more than 5 % of the invoice value of the deliveries and services affected by the delay. Any further claims of Customer are excluded, unless the delay is due to at least gross negligence on the part of Exacom.

V. Transfer of Risk

Unless otherwise contractually agreed, Exacom shall deliver the goods in accordance with the INCOTERMS (FCA/Free Carrier) applicable from time to time. The risk of accidental loss and deterioration of the goods shall pass to Customer upon delivery of the goods to the carrier.

VI Payments

Unless otherwise agreed, Exacom’s invoices are payable in full within 30 days of the invoice date.
Notwithstanding any provisions of Customer to the contrary, Exacom is entitled to apply payments first to Customer’s older debts. If costs and interest have already been incurred, Exacom is entitled to set off the payment first against the costs, then against the interest and finally against the principal.
If customer is in default, Exacom is entitled to charge interest at a rate of 8 percentage points above the base interest rate from the relevant date. Furthermore, Exacom is entitled to charge Customer a processing fee of EUR 10.00 for each reminder.

Customer shall only be entitled to set-off, retention or reduction, even if complaints or counterclaims are asserted
counterclaims are asserted, only if the counterclaims have been legally established or are undisputed.

VII Retention of title

All goods delivered shall remain the property of Exacom (reserved goods) until all claims, irrespective of their legal basis, including future or conditional claims, also from contracts concluded at the same time or later, have been fulfilled. This shall also apply if payments are made for specially designated claims. In the case of a current account, the reserved property shall serve as security for the balance claim.
If the goods delivered by Exacom under retention of title are seized or confiscated, customer shall notify Exacom immediately. Customer shall bear all costs incurred in connection with the release of the goods.
The customer is authorised to sell the reserved goods in the ordinary course of business as long as he is not in default, pledging or transfer by way of security is not permitted. Customer hereby assigns to Exacom by way of security all claims (including all current account balance claims) arising from the resale or any other legal reason (insurance, unauthorised action, etc.) with respect to the Reserved Goods, and Exacom hereby accepts such assignment. Customer authorises Exacom to collect the claims assigned to Exacom for its account in its own name.
In the event of breach of contract by customer – in particular default of payment – Exacom is entitled to take back the goods subject to retention of title and, if necessary, to demand assignment of customer’s claim for return against third parties. Exacom’s repossession or seizure of the Reserved Goods does not constitute a cancellation of the contract.
Exacom is entitled to assign claims arising from deliveries and services to a bank for financing purposes.

VIII. Notice of Defects, Warranty

Exacom shall be liable for material defects and defects of title within the scope of the statutory provisions, unless otherwise provided for in the following provisions. Exacom does not grant any dependent warranty beyond the statutory provisions on liability for material defects.
Exacom’s warranty claims for material defects shall lapse in their entirety if original technical labelling is removed or eliminated by Customer.
material defects, shortages or incorrect deliveries must be reported in writing immediately upon receipt of the goods within one week of the date of receipt of the delivery by Customer; non-obvious defects must be reported within one week of their discovery.
The customer is obliged to check the identity of the goods immediately upon delivery.
If Customer fails to notify Exacom immediately, the delivery shall be deemed approved. The inspection obligations pursuant to § 377 HGB remain unaffected.
4. if a material defect in the delivered goods is proven, Exacom is entitled, at its discretion, to subsequent fulfilment in the form of rectification of the defect or delivery of a new defect-free item. In the case of rectification of defects, Exacom is obliged to bear all expenses necessary for the purpose of rectifying the defect, in particular transport, travel, labour and material costs, insofar as these are not increased by the fact that the purchased item has been transported to a place other than the place of performance.
If the repair or replacement delivery fails, the customer has the right to withdraw from the contract or reduce the purchase price.
Further claims are excluded, unless mandatory statutory provisions provide otherwise,
Customer shall only be entitled to claims for damages for breach of duty if the breach of duty was caused by Exacom or one of its vicarious agents intentionally or through gross negligence. Insofar as Exacom is not guilty of intentional breach of contract, liability for damages shall be limited to the foreseeable, typically occurring damage.
If customer does not give Exacom the opportunity to convince itself of the existence of the material defect, in particular if it does not immediately make the rejected goods available upon request, Exacom shall be entitled to withhold fulfilment of its obligations towards Exacom.
Exacom is entitled to refuse subsequent performance as long as customer has not fulfilled his obligations towards exacom to the extent required by law.
The information provided by Exacom in its catalogues, brochures, advertising and price lists regarding the goods and services to be delivered are merely descriptions, markings and guidelines; they are without guarantee.
The limitation period for all claims for defects is 12 months, calculated from the transfer of risk.

IX. Liability

To the extent that claims, in particular claims for damages arising from impossibility, delay and breach of contractual claims in connection with claims for defects of the customer are not expressly conceded in these terms and conditions, they are excluded to the extent legally permissible, unless they are based on an intentional or grossly negligent breach of contract by Exacom.
The liability of legal representatives, vicarious agents and other employees towards the customer is excluded except in cases of wilful intent and gross negligence.
Advice and information are given to the best of Exacom’s knowledge, but without obligation and to the exclusion of any liability. To the extent that the Product Liability Act applies, the limitations of liability in paragraphs 1 and 2 shall not apply to the customer’s claims arising therefrom for liability for hazard, bodily injury and private property damage, unless the law expressly permits such an exemption from liability.
Liability for indirect damage and consequential damage, in particular loss of profit or third-party claims, is excluded.
Any claims for damages shall be limited in amount to compensation for foreseeable, typically occurring damage
Claims for damages shall expire 12 months after the transfer of risk.

X. Limitation of liability for the preparation of test plans

The preparation of test plans shall be carried out exclusively as an Exacom GmbH assumes no liability for the completeness and correctness of the test plans.

This exclusion of liability does not apply if a detailed written agreement (specification/specification sheet) describing the requirements for the test plans is concluded between Customer and Exacom GmbH.

2. Exacom GmbH shall not be liable for Customer’s test libraries and the application of the test algorithms during ongoing production after linking the test plans with the respective test library, as these libraries and algorithms are dynamically adapted by Customer to the constantly changing process conditions.

XI. Licence and copyrights

Copyrights as well as rights of use and exploitation of the sold Product remain with Exacom irrespective of the delivery to Customer. The reproduction of individual delivery parts or systems requires the written consent of Exacom.
reproduction of Exacom Software is permitted for backup purposes only.

XII. Data

The customer agrees that business-related data may be stored and used within the scope of the mutual business relationship.

XIII Export Control

Customer agrees to export Exacom’s goods only in compliance with all export regulations applicable in Germany or at Customer’s place of business. In the event of a violation of this provision, Exacom is entitled, but not obligated, to terminate all business relations with Customer without notice and to cancel all supply contracts already concluded without notice.

XIV Applicable law, place of jurisdiction

These Terms and Conditions and the entire legal relationship between Exacom and Customer shall be governed exclusively by the laws of the Federal Republic of Germany; the application of the UN Convention on Contracts for the International Sale of Goods is excluded.
To the extent permitted by law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship between Exacom and Customer shall be Hanover, Germany. However, Exacom is also entitled to sue Customer at the court having jurisdiction over Customer’s registered office.

XV Invalidity of clauses

Should individual provisions of the above General Terms and Conditions of Business, Sale and Delivery be or become invalid, the invalid provisions shall be replaced by provisions that come as close as possible to the intended economic purpose and correspond to the interests of Exacom/customer. This shall not affect the validity of any other provisions or agreements.

Hanover, 24 October 2024
Exacom GmbH

AGB